FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41035/98 by Ivan KEHAYOV against Bulgaria

The European Court of Human Rights (Fourth Section) , sitting on 26 October 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 January 1998 and registered on 29 April 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 applicant is a Bulgarian national, born in 1971 and living in Plovdiv , Bulgaria. He is represented before the Court by Mr Mihail Ekimdjiev , a lawyer practising in Plovdiv .

A. The circumstances of the case [Note1]

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

1. The applicant’s pre-trial detention and the proceedings against him

On 25 December 1997 the applicant was arrested and detained pending trial on suspicion of offences of rape and abduction (Sections 152 (1) and 142 of the Criminal Code).

On 5 January 1998 the applicant appealed to the Plovdiv District Court against the detention order on the grounds that he had a family and there was no danger of his absconding or committing further offences.

A hearing was scheduled on 19 January 1998, in connection with the applicant’s application for release. At that hearing, the applicant was represented by Mr Ekimdjiev . The applicant’s request to replace the president of the bench on the ground of partiality was granted and his case was assigned to a different bench. It appears that his application for release was dismissed.

On an unspecified date the applicant was committed for trial.

On 23 January 1998 a hearing took place before the new bench of the Plovdiv District Court. Mr Ekimdjiev was not allowed to participate in the proceedings because the president of the bench had not admitted his power of attorney. He considered that since it had not been filled-in on a proper form, it had only been signed by the applicant’s wife and not by the applicant, there had been no indication of the lawyer’s fees and a counterfoil from the Bar Association had been missing, the lawyer’s power of attorney had not represented a proper contract for legal representation. The applicant presented another power of attorney which he had signed at the hearing, but the court did not admit it for the numbers of the investigation and the court’s case-files had not been marked on it.

At that hearing, the applicant made a new request to be released on bail. The court dismissed the application without having advised the applicant about his rights and without having asked him any questions. The reasons given by the court were that he was charged with a serious criminal offence. It went on to conclude that the fact that the applicant had refused to sign the charges and minutes taken at his initial questioning and to give any explanations at that questioning clearly demonstrated his careless attitude regarding the charges laid against him. That indicated a danger of his absconding or committing further offences.

On an unspecified date, upon the applicant’s request, a medical report was prepared on the applicant’s mental health. The applicant did not enclose the medical report.

The applicant filed a new application for release dated 7 April 1998 which was based on the medical report. According to the medical report he was diagnosed as suffering from “paranoid schizophrenia” and possibly suffering from “a paranoid personality with psychotonic decompensation ”. He argued that the living conditions of the detention facility had contributed to the deterioration of his mental health.

This application was submitted to the Plovdiv District Court through the responsible investigator on 13 April 1998. However, it was not transmitted to the court until 8 May 1998.

On 13 April 1998 the applicant also filed a request for the replacement of the president of the bench, whom he claimed to be biased. He relied on what had been said in the court’s decision of 23 January 1998. He argued that the judge’s partiality was demonstrated by the mere fact that on 23 January 1998 the president had not admitted the lawyer’s power of attorney, although it had been made up properly and in accordance with Section 69 (2) of the Code of Criminal Procedure. No detail is available as to whether this request was examined.

On 11 May 1998 without having informed the applicant’s lawyer, the Plovdiv District Court scheduled a hearing to examine the applicant’s case. However, as the applicant refused to appear in the absence of his lawyer, the hearing was adjourned to 21 May 1998. In the minutes it was noted that the applicant’s lawyer had failed to consult the court’s register on time in order to obtain information about the date of the next hearing.

On 12 May 1998 the applicant’s lawyer complained to the Plovdiv District Court that it had not been possible for him to obtain the information about the date of the hearing on time. In particular, on Friday, 8 May 1998, at around 11.00 am, when he had checked the court’s register, there was no entry whatsoever regarding the case. Only on Monday, 11 May 1998, at around 10.00 am, there was an entry stating that his application for release had been received and assigned to a bench, and that it was going to be examined on the same day. The applicant’ lawyer argued that since it had not been possible for him to obtain a prompt information about the date of the hearing, it was the court’s obligation to summon him. His address was easily obtainable from the Bar Association. He further complained that even if he had been informed on Friday about the hearing on Monday, he would still not have had sufficient time to prepare a proper defence. There was a further objection that the next hearing listed for 21 May 1998 had not been promptly scheduled. No details are available as whether this objection was examined by the court.

On 21 May 1998 the Plovdiv District Court by its decision no. 79/1998 dismissed the applicant’s application for release based on the medical report. The court held that “…it transpires from the medical report that the defendant Kehayov is capable of participating in the criminal proceedings against him…”. It also held that since the applicant had been charged with the criminal offence in the course of the three years’ probationary period imposed on him in 1996 for having committed another criminal offence, there had been a danger of his obstructing the course of justice or committing further offences.

On 29 July 1998 the preliminary investigation against the applicant was completed and an indictment was submitted to the Plovdiv District Court.

The hearing listed for 1 October 1998 was adjourned to 23 November 1998 because some of the witnesses were not properly summoned. The applicant’s application for release was dismissed on the same day on the grounds that firstly, he was charged with a serious wilful offence and, secondly, he was a suspect of having committed an offence in the course of a probationary period imposed on him for having committed another offence. For these reasons, a danger of his committing further offences was presumed.

The hearing resumed on 23 November 1998. There was further adjournment because some of the witnesses were not properly summoned, whereas others albeit summoned, did not appear at the hearing.

At that hearing, the applicant submitted another application for release on the grounds that his detention was unreasonably long, that the court failed to conduct a prompt trial and that there was no convincing evidence against him. The court ruled against the applicant’s release. It, inter alia , stated:

“...The applicant’s counsel states that the applicant has a permanent address, a good character and looks after his parents who are elderly and sick. However, [in view of] the number of the repeated acts [by which the criminal offence was made out], his previous criminal record and the sentence prescribed by law for the offence with which the applicant is charged, the court considers that there is a, prima facie , danger that he might obstruct the course of justice…”

On 18 December 1998 the Plovdiv District Court found the applicant guilty under Sections 152 (1) and 154 of the Criminal Code and sentenced him to two years’ imprisonment.

On 30 April 1999, the Plovdiv Regional Court upheld the first instance judgment. The proceedings are apparently still pending before the Supreme Court of Cassation .

2. The applicant’s request to consult the case-file

On 19 January 1998 the applicant requested the president of the bench to allow him to consult the case-file in order to prepare his defence for the next hearing regarding his application for release. This request was dismissed on the same day. The judge put an abbreviation which signified a refusal and his signature on the request.

On 21 January 1998 the applicant’s fresh request to consult the case-file was dismissed by the president of the newly appointed bench of judges without any explanation. He put an abbreviation which signified a refusal and his signature on the request.

On 12 May 1998 the applicant’s lawyer again requested the president of the bench to grant him leave to consult the case-file. On 18 May 1998, the president enclosed the request with the case-file, without having decided on it. Therefore, on 20 May 1998, when the applicant requested to consult the case-file, this was refused by the responsible person on the grounds that the investigation proceedings had not been yet concluded and that the president of the bench had not instructed her to allow the applicant to consult the case-file. On 21 May 1998, at the hearing the applicant complained against the refusal to be granted leave to consult the file. The court dismissed it on the ground that the investigation bodies had the right to determine which materials from the case-file could be consulted by the applicant.

The applicant submits that upon the initiative of his lawyer on 13 March 1998, an opinion of the plenary session of the criminal judges of the Plovdiv Regional Court was obtained. According to it, the judges were favourable to allowing the lawyers to consult the case-file when it concerns applications for release, but only documents which are of a direct interest for the preparation of the defence regarding the applications for release.

3. Conditions of the applicant’s detention

Between 25 December 1997 and at least 5 April 1998 the applicant was kept in a lock-up at the Regional Investigation Office in Plovdiv . No information is available whether he was transferred to another detention facility.

The cell, where the applicant was detained together with four other people, measured 6m². Since there were no beds, they had to sleep on a concrete floor, on several blankets which had not been washed or changed for a considerable time. The cell was short of fresh air, daylight and electricity. In winter the temperature did not get above 10-12 C°. The applicant and the other detainees were forced to relieve themselves in a bucket, which was never cleaned or disinfected, and which was permanently in their cell. Only twice a day, at 6.30 am and 6.30 pm the applicant had two or three minutes access to toilet facilities and running water. The food was very bad and served in plastic mugs which had not been washed or disinfected. No forks or knives were available.

The applicant submits that due to the poor hygienic conditions, many detainees often contract viral infections and even bronchopneumonia or tuberculosis if their stay is prolonged.

B. Relevant domestic law and practice

1. Criminal Code

Section 142 provides that a person who unlawfully takes away or detains another person shall be sentenced to a term of imprisonment between one and six years.

Section 152 (1) provides that a person who has a sexual intercourse with a female, without her consent and committed by overcoming the woman’s resistance by force or fear or by any other unlawful means shall be sentenced to a term of imprisonment between two and eight years.

Section 154 provides that a person who has sexual intercourse with the members of his immediate family shall be sentenced to up to three years’ term of imprisonment.

2. Code of Criminal Procedure

(a) Detention

Legal criteria for detention on remand

The relevant part of Section 152 of the Code of Criminal Procedure provides as follows:

“(1) An accused charged with having intentionally committed a serious offence shall be detained pending trial.

(2) In cases under the previous paragraph [pre-trial detention] shall not be ordered if there is no danger that the accused will abscond, interfere with witnesses or tamper with evidence, or commit further offences.”

According to the Supreme Court’s practice Article 152 § 1 of the Code of Criminal Procedure requires that a person charged with a “serious wilful crime” shall be detained pending trial. The only exception is provided for by Article 152 § 2 of the Code, which empowers the prosecutor not to order detention of an accused where it is clear beyond doubt that there is no danger of his absconding or committing further offences. Such a danger must be shown objectively not to exist as, for example, in the case of an accused who is seriously ill, or elderly, or is detained on other grounds such as serving a sentence ( опред . No. 1 от 4.5.1992. по н.д . 1/92. на ВС II н.о ., Сб . 1992/93, стр . 172; опред . No. 4 от 21.2.1995 по н.д . 76/95 на ВС II н.о .; опред . No. 78 от 6.11.1995 по н.д . 768/95 на ВС II н.о .; опред . No. 24 по н.д . 268/95 на ВС, I н.о ., Сб.1995, стр . 149). In some more recent decisions the Supreme Court has nevertheless embarked on an analysis of the particular facts to justify findings that there existed a danger of absconding or of offending ( опред . No. 76 от 25.07.1997 по н.д . No. 507/97 на ВС II н.о ., бюл . кн . 9-10/97, стр . 5; опред . No. 107 от 27.05.1998 по н.д . 257/98 на ВС II н.о ., бюл . кн . 3-4/98, стр . 12).

Appeals against detention prior to the trial

Section 152a of the Code of Criminal Procedure, as in force since 1 August 1997, provides as follows:

“(1) The detained person shall be provided immediately with an opportunity to file an appeal to a judge at the competent court against the [pre-trial detention], not later than seven days following the order. The judge shall order the parties to attend and decide on the appeal in open court not later than three days following the receipt of the appeal at the court. [An amendment in force since 24 October 1997 replaced the words “a judge at the competent court” by the words “the competent first-instance court”.]

(2) The appeal shall be lodged through the body which ordered detention. On the day when it is lodged, the appeal, accompanied by the decision under Article 148 § 1 [the order for detention] and all materials in the case, shall be transmitted to the court.

(3) The court shall deliver a decision against which no appeal will lie. The court shall either quash the detention order and impose another measure of control or dismiss the appeal.

(4) In the event of a change of circumstances the detained person may again appeal to the court against the [pre-trial detention].”

Appeals against detention pending the trial

Under Section 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 Section 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 the higher court (Section 344 § 3).

(b) Consultation of a case-file

Section 214 of the Code of Criminal Procedure provides that when the preliminary investigation is concluded the investigator shall present the materials to the parties.

(c) Power of Attorney

Section 69 (2) of the Code of Criminal Procedure provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the conditions in the detention facility amounted to inhuman treatment, as, in particular, the cell was overcrowded and the sanitary conditions were very poor.

The applicant complains under Article 5 § 1 of the Convention that he was unlawfully detained, since the court did not make any specific reference as to a danger of his absconding or committing further offences.

The applicant complains under Article 5 § 3 of the Convention that he was not brought promptly before a judge. He further complains under the same Article that his detention was unreasonably long and the court did not give any reasons to justify the continuation of his detention.

He further complains under Article 5 § 4 of the Convention that the courts examined his applications for release with substantial delays. In particular, his application for release submitted on 5 January 1998 was only examined on 19 January 1998 and another one which was submitted on 13 April 1998, was only examined on 21 May 1998.

The applicant complains under Article 5 § 4 of the Convention that the District Court’s review of the lawfulness of his detention on 23 November 1998 was purely formal.

The applicant complains under Article 5 § 4 of the Convention that the court, on several occasions, refused to allow his lawyer to consult the case-file concerning his application for release.

He further complains under Article 5 § 4 that on one occasion the court did not allow the applicant’s lawyer to participate in the proceedings in which it had decided on the lawfulness of his detention. Thereby, the adversarial character of the proceedings was infringed.

The applicant complains under Article 6 § 2 of the Convention that the court, by its decision of 23 January 1998, infringed his right to be presumed innocent until proved guilty.

THE LAW

1 . The applicant complains under Article 5 § 1 of the Convention that his detention was unlawful and arbitrary.

Article 5 § 1, insofar as relevant, provides as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

…

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

...”

In the light of all the material in its possession the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than in accordance with a procedure prescribed by law, within the meaning of Article 5 § 1. The Court considers that it fell within the ambit of Article 5 § 1(c) of the Convention, for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed an offence. As regards the alleged lack of reasonable suspicion, the Court is not persuaded by the applicant’s arguments. The charges against the applicant were based on documents, testimonies and other evidence which indicated that he might have committed a violent offence.

In so far as the applicant’s complaint also concerns his detention pending his appeal, the Court observes that a detention after conviction by a competent court comes within Article 5 § 1(a) of the Convention, even if it is considered as pre-trial detention under domestic law (the B. v. Austria judgement of 28 March 1990, Series A no. 175, pp. 14-16, §§ 35-40).

Finally, the Court finds no evidence capable of showing that the applicant’s conviction had no basis in domestic law or was arbitrary.

It follows that the complaint under Article 5 § 1 is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains that the court, by its decision of 23 January 1998, infringed his right to be presumed innocent until proved guilty. He invokes Article 6 § 2 of the Convention which provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law.”

The Court recalls that a complaint under Article 6 of the Convention concerning the alleged unfairness of criminal proceedings would in principle be premature when these proceedings are still pending. An applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his or her right to a fair trial in respect of proceedings which have not been concluded ([see] application no. 37355/97 decision of 20 April 1999 , unpublished; application no. 31195/96, decision of 27 February 1997, DR. 88, p. 169).

The Court notes that it is open to the applicant to appeal to the Supreme Court of Cassation , which is also competent to examine the allegation now raised before the Court.

It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right to be presumed innocent until proved guilty under Article 6 § 2 and that, therefore, this part of the application is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

3. As regards the applicant’s complaints under Article 3 that the conditions in the detention facility amount to inhuman treatment; under Article 5 § 3 that the applicant was not brought promptly before a judge and that his pre-trial detention was unreasonably long; under Article 5 § 4 that his applications for release were not examined speedily by the District Court, that on one occasion the court’s review of the lawfulness of his detention was purely formal, that he was not granted leave to consult the case-file and that the court did not allow his lawyer to participate at a hearing regarding his application for release, the Court considers that it cannot, on the basis of the case-file, determine their admissibility 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.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that the conditions in the detention facility amount to inhuman treatment; that the applicant was not brought promptly before a judge; that his pre-trial detention was unreasonably long; that his applications for release were not examined speedily by the District Court; that on one occasion the court’s review of the lawfulness of his detention was purely formal; that he was not granted leave to consult the case-file and that the court did not allow his lawyer to participate at a hearing on his application for release;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.