FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35519/97 by Mihail MIHOV against Bulgaria

The European Court of Human Rights (Fourth Section) , sitting on 19 September 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 , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 December 1996 and registered on 2 April 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national, who was born in 1966 and lives in Bulgaria. He is represented before the Court by Mr Yonko Grozev , a lawyer practising in Sofia, Bulgaria.

A. The circumstances of the case [Note2]

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

1. The criminal proceedings

On 10 September 1993 the Plovdiv Regional Public Prosecutor instituted preliminary investigation proceedings against three persons, the applicant not being among them, suspected of a continuing serious offence of fraud and forging tax documents in order to obtain a refund of excise duty in breach of the Law on Turnover Tax and Excise Duty. The co-accused were suspected of making false customs declarations certifying fictitious exports of consignments of cigarettes, which in reality had been sold in the country. On the basis of the false declarations they had allegedly obtained the reimbursement of large sums in excise duties.

On 11 September 1993, the applicant, who worked as a custom officer at the city of Rouse Customs Office, was questioned in that connection.

On an unspecified date in the course of the preliminary investigation, two of the four lorry drivers involved in the transportation of the cigarettes testified that the lorries had never left Bulgaria, but had been unloaded in another Bulgarian town. However, when the lorry drivers were questioned during the trial, they changed their testimonies, and claimed that they had in fact left Bulgaria. Their passports contained stamps showing that they did so indeed. The two other lorry drivers gave evidence both during the preliminary investigation and at the trial that they had crossed the Romanian border.

The other items of evidence were customs office documents and a diary entry by the applicant that the lorries had crossed the Bulgarian border. On an unspecified date, a document was issued by the Romanian border authorities which certified that the four lorries had never entered Romania.

On 1 December 1993 the applicant was detained on suspicion of having aided and abetted Mr I. to obtain an unlawful refund and having forged excise duty documents (Section 212 §§ 2 and 4 of the Criminal Code). The accusations concerned the alleged false certification, made by the applicant on 9 May 1993, that several lorries had left the country.

The applicant’s defence was apparently based on his assertion that on that day he had been working in his office on the basis of documents only and that only his colleagues had been checking the actual traffic of lorries.

On 10 March 1994 the investigator charged five witnesses with perjury.

On 24 March 1994 the applicant’s request for the District Public Prosecutor to be replaced on grounds of bias was dismissed by the higher prosecution authority.

On 1 April 1994 the prosecution completed the preliminary investigation against the applicant and three other co-accused and submitted an indictment to the Plovdiv Regional Court. One of the initial charges, that the applicant had aided and abetted Mr I. to obtain an unlawful excise duty refund, was dropped.

The panel of judges of the Regional Court was composed of one professional and two lay judges. They were to examine 33 witnesses and a volume of documents.

The first hearing scheduled for 19 April 1994 before the Plovdiv Regional Court against the applicant and his co-accused did not take place as one of the lay judges was sick.

It appears that on an unspecified date the applicant requested the severance of the proceedings in the interest of the proper administration of justice. That request was dismissed by the court.

At the hearing of 12 and 13 May 1994 the court decided to order the preparation of a financial report and to summon other witnesses. It adjourned the hearing.

It appears that the hearing scheduled in June 1994 had to be adjourned as the case-file was at the Supreme Court in Sofia for the examination of the appeals submitted by the co ‑ accused persons against the Regional Court’s refusal to release them on bail.

The trial resumed on 6 and 7 October 1994. The court adjourned it so that the applicant and his co-accused could submit further evidence and decided to fine the witnesses who had failed to appear. The Court ordered that police assistance should be provided to ensure their attendance.

The next hearing took place on 29 and 30 November 1994. The financial expert complained that he had been denied access to some important bank and customs documents and had not been able to prepare the financial report. The court appointed two additional financial experts and ordered the bank and the customs office to give access to the documents in question and to provide the experts with certified copies.

One of the lay judges sitting on the panel was hospitalised after undergoing surgery. Therefore, the next hearing on 9 June 1995 had to be adjourned. The court decided to gather more information on the state of the judge’s health and to replace her, if necessary.

The hearing of 21 September 1995 was adjourned, as the applicant’s lawyer had broken his leg in a car accident and had requested an adjournment to 1 November 1995. The court also observed that several witnesses had not been summoned properly and that others had failed to appear. The court again ordered that police assistance should be sought to obtain the attendance of some of the witnesses.

The applicant submits that on 22 September 1995 the Plovdiv Regional Court, sitting in camera, dismissed the application he had made jointly with the other two co-accused for the replacement of the panel of judges on the ground that they were not impartial as on several occasions they had dismissed their applications for release.

It appears that both lay judges were seriously ill and could not attend the hearing on 12 January 1996. The court decided to ask the President of the Court whether to replace them in view of their state of health. It also appears that there were further problems with witnesses who had not been duly summoned or had failed to appear at the hearing.

As from 19 February 1996 the Plovdiv Regional Court had to recommence the examination of the case because one lay judge had fallen ill and had to be replaced. At that hearing, the court appointed two additional experts to prepare the financial report and ordered that police assistance should be provided to obtain the attendance of one of the key-witnesses.

On 21 February 1996 the police reported that the witness had gone into hiding, in defiance of the court order.

The new chamber of the court held a hearing on 26 and 27 March 1996. It appears that all the summoned witnesses attended the hearing, but some important witnesses were not duly summoned due to a “mistake by the secretary of the court”. It further appears that five of the summoned experts did not attend the hearing because they were ill or out of town. On 27 March 1996 the court examined the financial report prepared by the experts and adjourned the hearing to 7 and 8 May 1996.

There was a further adjournment of the trial to 16 and 17 September 1996 as some other witnesses, although summoned, did not appear before the court and also because a lay judge was unable to attend.

The next hearing took place on 29 October 1996. The court adjourned it to the following day due to the absence of one of the lawyers and ordered police assistance for the attendance of other witnesses who had been summoned, but had not appeared at the hearing. There was a further adjournment because the medical experts considered that one of the co ‑ accused was not in a condition to participate in the hearing due to ill health.

The hearing of 19 December 1996 had to be adjourned again, as two of the summoned witnesses did not appear. The court again sought police assistance in this respect and ordered one of the co-accused to notify the court of the addresses of the witnesses for the defence.

The last hearing was held on 28 throughout 31 January 1997. The key witnesses finally appeared before the court. The court refused the applicant’s request to order the re ‑ examination of four witnesses who had been heard during the preliminary investigation.

On 31 January 1997, the applicant was found guilty of having forged tax documents with a view to obtaining an unlawful gain for others. He was sentenced to ten years’ imprisonment. The other co-accused were also convicted and sentenced to between eleven and twelve years’ imprisonment.

Upon the applicant’s appeal the Supreme Court of Cassation listed the case for a hearing on 26 September 1997. On that date the prosecutor appointed to act before that court declared that he had known one of the convicted persons and wished to withdraw. The hearing, which was adjourned to 23 January 1998, eventually resumed on 16 March 1998, when the applicant’s appeal against the decision of the Regional Court was dismissed.

On 22 March 1999 the Supreme Court of Cassation , in the presence of only the prosecutor, dismissed the applicant’s petition for review. The court held that the Regional Court’s refusal to examine some of the evidence adduced by the applicant had been justified, as it was irrelevant to the case and, in any event, there had been sufficient corroborating evidence before that court.

2. The applicant’s pre-trial detention

On 1 December 1993 the applicant was arrested and detained on remand.

On 1 March 1994 the applicant’s application for release was dismissed by the Plovdiv Regional Court, sitting in camera , on the grounds that he was charged with a serious offence with intent and that there was a prima facie danger of his absconding, committing further offences or obstructing the course of justice. The court held that the state of health of the applicant’s wife and child was not a ground for ordering his release under the relevant law.

On 14 March 1994 the applicant complained of his detention to the Chief Public Prosecutor on the ground that he had not committed the offence in question.

On 13 May 1994 the Regional Court dismissed the applicant’s application for release.

On 18 May 1994 the applicant appealed to the Supreme Court against the Regional Court’s decision of 13 May 1994. On 30 June 1994 the appeal was dismissed at a sitting in camera in the presence of the prosecutor. The Supreme Court held that the applicant’s detention was imperative as he had been charged with a serious offence with intent.

At the trial hearing of 29 and 30 November 1994, the applicant applied for release on bail on the grounds that there was no danger that he would abscond and that he had a permanent address. The court dismissed the application holding that there were no new facts to justify his being released.

On 4 December 1994, the Regional Court acting as a second instance court dismissed the applicant’s subsequent appeal. The court held, inter alia , that according to the domestic law and the Supreme Court’s practice detention pending trial was prima facie imposed when a person had been accused of having committed a grave wilful offence. To substitute this judicial measure by a more lenient one would be only possible if there was “no even a hypothetical danger that the accused might abscond or commit further offences”, in particular, “if he is ill, elderly or isolated from the society”.

On 20 January 1995, the applicant appealed against that decision to the Supreme Court on the ground that he had been detained for a year and that all relevant evidence had been gathered. On 21 February 1995, at a sitting in camera , in the presence of the prosecutor, the Supreme Court dismissed the applicant’s appeal on the ground that under its practice detention pending trial was in principle imposed whenever a person was accused of a serious offence with intent. To substitute this judicial measure by a more lenient one would be only possible if there was “not even a hypothetical danger that the accused might abscond or commit further offences”, i.e. if he was elderly or seriously ill.

On 21 September 1995, during the trial, the applicant again appealed against his detention on the ground that there was no danger of his absconding. In particular, he pointed out that he had continued to work at the customs office although he had been aware of the preliminary investigation. He was a respected citizen with a family and had a permanent address. He argued that no steps had been taken by the authorities for almost a whole year. The court dismissed the application, holding that domestic law required pre-trial detention to be imposed in all cases when a person was accused of a serious offence with intent.

On an unspecified date the applicant submitted a further appeal to the Supreme Court, which was dismissed on 6 November 1995. The court held that he was charged with a serious offence with intent for which the Criminal Code laid down a minimum sentence of ten years’ imprisonment and that there was a prima facie danger of his absconding, committing further offences or obstructing the course of justice.

On 19 February 1996 the applicant again submitted an application for release to the Plovdiv Regional Court on the same grounds. It was dismissed on the same day as there were no new facts which justified his release.

On 29 and 30 October 1996 the applicant filed with the Regional Court two applications for release on the grounds that there was no danger of his absconding, committing further offences or obstructing the course of justice. The first was dismissed on the same day and the second on 11 November 1996 on the ground that there were no new facts which justified his release.

On 1 November 1996 the applicant lodged an appeal against the decision of 29 October 1996 to the Supreme Court stating, inter alia , that his detention had been continuing for three years only because the Regional Court had failed to conduct the trial promptly. In particular, it had not replaced the lay judge who had been ill. On 4 December 1996, only in the presence of the prosecutor, the court dismissed his appeal. It held, inter alia , that the fact that he had been charged with a serious wilful offence gave raise to a presumption that he would abscond, obstruct the course of justice or re-offend.

On 29 January 1997, the trial court dismissed the applicant’s application for release, which had been submitted the same day, holding, inter alia , that he had been charged with a serious offence with intent and that there were no new facts to justify his release.

B. Relevant domestic law and practice

1. Criminal Code

Section 212 §§ 1, 2 and 4 provides that a person who forges documents with a view to obtaining an unlawful gain for himself and others shall on conviction be sentenced to a maximum of eight years’ imprisonment. In serious cases of fraud and forgery of documents, the offender can be sentenced to imprisonment of ten to twelve years.

2. Code of Criminal Procedure

(a) Legal criteria for detention on remand

Paragraphs 1 and 2 of Section 152, as in force at the relevant 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 another crime.”

These provisions, as in force after 4 June 1995 and 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 not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.”

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

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 detain 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).

(b) Appeals against detention during 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). The appeal must be lodged within seven days (Section 345) with the trial court (Section 348 § 4 in conjunction with Section 317, as in force at the relevant time). According to Section 347, after receiving the appeal, the trial court, sitting in camera , shall decide whether there grounds to annul or alter its decision exist. If it finds no such reason the trial court transmits the appeal to the higher court.

Section 348 provides that the appellate court may examine the appeal in camera or, if it considers it necessary, at a public hearing. The law does not require the appellate court to rule within a particular time-limit.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that he was detained unlawfully. In particular, there was no reasonable suspicion that he had committed a crime at the time he was detained. There was also no danger whatsoever that he would abscond, obstruct the course of justice or commit further offences.

The applicant complains under Article 5 § 3 of the Convention that his detention pending trial was unreasonably long. He further complains under the same Article that he was not brought promptly before a judge.

The applicant complains under Article 5 § 4 of the Convention that the Supreme Court of Cassation failed to hold hearings in his presence while examining his applications for release. The applicant claims that as a result the proceedings were not adversarial.

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 the detention until 31 January 1997 fell within the ambit of Article 5 § 1(c) of the Convention, as it was imposed 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 a reasonable suspicion, the Court is not persuaded by the applicant’s arguments. The charges, some of which resulted in the applicant’s conviction, were based on documents, testimonies and other evidence which indicated that he might have forged tax documents with a view to obtaining an unlawful gain for others.

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

In this respect, 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 further complains that he was not brought promptly before a judge when he was arrested. He invokes Article 5 § 3 of the Convention which provides as follows:

“ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...”

The Court observes that the above complaint under Article 5 § 3 is apparently related to the fact that under Bulgarian law, as in force at the relevant time, neither investigators, before whom arrested persons appeared, nor prosecutors, who were competent to approve decisions for pre-trial detention, could be considered “officer[s] authorised by law to exercise judicial power” ( Nikolova v. Bulgaria , no. 31195/96, § 50, ECHR 1999-…). This complaint concerns certain provisions of the Code of Criminal Procedure, that gave rise to a continuing situation in which an individual could - for a lengthy period - be deprived of his right to be brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention ( appl . no. 32220/96, decision of 23.4.98).

The Court recalls that, according to the established case-law of the Convention organs, where no domestic remedy is available the six-month period runs from the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, it runs from the end of the situation concerned ([see] appl . no. 14807/89, decision of 12.2.92, DR 72, p. 148; appl . no. 19601/92, decision of 19.1.95, DR 80-B, p. 46, appl . no. 32220/96, decision of 23.4.98).

From the applicant’s submissions it is clear that he was brought before a judge for the first time on 12 May 1994. That day, therefore, is the starting point of the six-month period Article 35 § 1 of the Convention as regards his complaint.

The applicant introduced his application with the European Commission of Human Rights on 8 December 1996.

It follows that the above complaint was introduced outside the six months’ time-limit under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicant complains under Article 5 § 3 of the Convention that his detention pending trial was unreasonably long.

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. 

4. The applicant complains, invoking Article 6 of the Convention, that on several occasions the Supreme Courts failed to hold public hearings.

The Court considers that this complaint falls to be examined under Article 5 § 4 of the Convention which provides as follows:

“ Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court observes that the applicant has introduced his application with the Commission on 8 December 1996. Therefore, insofar as his complaint concerns proceedings before 8 June 1996, it has to be rejected as being introduced outside the six-months’ time ‑ limit under Article 35 § 1 of the Convention.

As regards the remainder, which concerns the proceedings before the Supreme Court of 4 December 1996, the Court considers that it cannot, on the basis of the information in 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 his pre-trial detention was excessively lengthy and that the Supreme Court of Cassation failed to hold a hearing in his presence when examining his application for release on 4 December 1996;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)

[Note2] Include information obtained from the Government on the Judge Rapporteur’s or Chamber’s request, with indication of this fact, where appropriate.