FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35436/97 by Vladimir Ivanov HRISTOV 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 ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 January 1997 and registered on 25 March 2000,

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 1952 and living in Plovdiv . He is represented before the Court by Mr Mihail Ekimdjiev , a lawyer practising in Plovdiv .

A. The circumstances of the case

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

The applicant was arrested on 4 October 1993 in connection with the investigation involving two other people which had been instituted on 10 September 1993. He was suspected of having forged tax documents in order to obtain an excise tax refund in breach of the Law of Turnover and Excise Taxes with a view to obtaining an unlawful gain for himself and others (Section 212 §§ 1, 2 and 4 of the Criminal Code).

The applicant submitted that he had been arrested and questioned without the presence of a lawyer.

On 12 October 1993 the applicant appealed to the Plovdiv Regional Court against the Public Prosecutor’s decision to detain him pending trial on the ground that he had no intent whatsoever to obtain an unlawful gain, that he had no previous criminal record, that he had a family and a permanent address.

On 3 November 1993, the court granted the applicant’s application for release and released him on bail. The applicant and his lawyer, Mr Dafchev , were both present at the hearing.

On 15 February 1994 the applicant was charged under Section 293 § 1 of the Criminal Code with having suborned a witness. The applicant was detained pending trial the same day in connection with the proceedings relating to the main offence and to the new charges. He continued to be represented by Mr Dafchev .

On 1 April 1994 the preliminary investigation against the applicant and three other co-accused was completed and an indictment was submitted to the Plovdiv Regional Court. The prosecution proposed 33 witnesses and a volume of documents to be examined by the court.

The panel of judges of the regional court was composed of one professional judge and two lay judges.

The hearing scheduled for 19 April 1994 had to be adjourned as one of the lay judges was ill.

On 12-13 May 1994 there was a hearing before the Plovdiv Regional Court against the applicant and three other co-accused. The Public Prosecutor filed a motion for termination of the power of attorney of Mr Dafchev who had also been legal counsel of Mr A., another co-accused. The Prosecutor noted, in particular, that on 10 March 1994, during their questioning, Mr A. had accused the applicant of having aided and abetted him to commit the offence in question, which was denied by the applicant. The applicant’s and the other co ‑ accused’s testimonies were conflicting and inconsistent, although they were both represented by Mr Dafchev . The applicant’s lawyer was of the opinion that since the other co-accused had already appointed another lawyer, it was not necessary to terminate his power of attorney, but it would suffice to order another questioning of the two co-accused. The court granted the Public Prosecutor’s motion, holding that it was imperative under the relevant law to order termination of the lawyer’s power of attorney when there is a clear conflict of interest.

On 13 May 1994 the applicant’s appeal against the decision to terminate his lawyer’s power of attorney was dismissed. The court ordered a financial report, summoned other witnesses and adjourned the hearing.

It appears that the hearing scheduled in June 1994 had to be adjourned as the case-file was in Sofia, at the Supreme Court, for the examination of the appeals submitted by the applicant and 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. At that hearing the court dismissed the applicant’s applications for release of 15 July and 19 September 1994, the latter being accompanied with a medical report according to which the applicant was developing a serious kidney disease. The court adjourned the hearing so that the applicant and other co ‑ accused persons could submit further evidence and decided to fine the witnesses who, albeit summoned, did not appear before the court. It also ordered that police assistance should be requested to ensure their attendance.

The next trial hearing took place on 29 and 30 November 1994. The applicant’s renewed application for release was dismissed. The court stated inter alia :

“The applicant [was again detained pending trial because he had] committed another offence ( осъществил друго престъпление ) during the preliminary investigation which gave sufficient reason to the prosecutor to impose detention pending trial, not only under section 293 of the Criminal Code, but also under section 212 [of the Criminal Code].”

At the same hearing, the financial expert stated that he was denied access to some important bank and customs documents for which reason the financial report could not be finalised. The court ordered the bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed.

On 4 December 1994 upon the applicant’s appeal, the Plovdiv Regional Court as a second instance court, sitting in camera , 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 grave wilful offence. 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”, in particular, “if he is ill or elderly”.

At the same sitting, the court dismissed the applicant’s repeated complaint that by ordering the termination of his lawyer’s power of attorney the Regional Court had violated his right to a lawyer of his own choosing, holding that the court’s decision served to safeguard the applicant’s interest. The court stated, inter alia , that during the preliminary investigation the applicant and the other co-accused had given conflicting evidence. In order to protect the right to defence of both co-accused persons, the legislator had provided for termination of the lawyer’s power of attorney. Therefore, it was indispensable to terminate the lawyer’s power of attorney so that both co-accused could appoint other lawyers and develop their own lines of defence.

The applicant’s subsequent appeal against his detention was dismissed by the Supreme Court on 21 February 1995 on the ground that there was, prima facie , a danger of his absconding, committing further offences or obstructing the course of justice, regard being had to the fact that he had been charged with having suborned a witness while at large. It further held that according to the Supreme Court’s practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious offence with intent. 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 i.e., if he was elderly, seriously ill or in any way isolated from the society [serving another prison sentence]”.

On 14 December 1994 and on 19 January 1995 the applicant repeated his complaint to the Regional Court in respect of its decision to have the applicant’s lawyer substituted because of conflict of interests. No further detail is provided as to whether the court examined those applications.

On an unspecified date one of the lay judges sitting on the panel was hospitalised after having undergone a surgery. For this reason the next hearing, listed for 9 June 1995, had to be adjourned. The court decided to gather more information on the judge’s state of health and to substitute her, if necessary.

On 12 June 1995 the applicant submitted an application for release to the Regional Court on the grounds that he had a permanent address and there was no danger of his obstructing the course of justice. He further complained of the length of his pre-trial detention, resulting from the court’s bad organisation of work and undue delays in the scheduling of the hearings. It cannot be inferred from the applicant’s submissions whether the court examined the application.

Between 30 August and 12 September 1995 the applicant underwent a treatment for his kidneys at prison hospital.

The hearing of 21 September 1995 was adjourned as one of the co- accused’s lawyers 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, albeit summoned, had not appeared. The court ordered that police assistance should be provided to ensure their attendance.

At the hearing the applicant submitted another application for release on bail on the grounds that he had a family, a permanent address, and that since the financial report had been completed there was no danger of his obstructing the course of justice. He further stated that he needed a treatment in hospital and enclosed a medical report. The court dismissed the application, holding that 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. The court further considered that it was not proven that the detention facilities had been detrimental to the applicant’s health.

The applicant further requested a substitution of the president of the judicial panel on the ground that he was not impartial as on several occasions he had dismissed his applications for release. He also requested the substitution of the two lay judges alleging bias. He further complained that he had been twice detained pending trial for the same offence and that it was not proven that he had suborned a witness. On 21 September 1995 his requests were dismissed. On 3 October 1995 the applicant filed a subsequent appeal with the Supreme Court, which was dismissed on 6 November 1995 on the ground that the applicant had been charged with a serious wilful offence.

It appears that two lay judges, sitting on the panel, were seriously ill and could not take part at the hearing listed for 12 January 1996. On that basis, the court adjourned the hearing to 19 February 1996. It also decided to inquire about their state of health and to ask the president of the court to order their substitution, if necessary. It also appears that some of the witnesses were not summoned properly, whereas others, albeit summoned, did not appear at the hearing. The applicant submitted an application for release on the ground that his detention was excessively lengthy, that he had a permanent address, that he did not have a previous criminal record and that there was no danger of his obstructing the course of justice.

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 the hearing on 19 and 20 February 1996, 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. The court also dismissed the applicant’s application for release.

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

The hearing which resumed on 26-27 March 1996 was again adjourned to 7 and 8 May 1996, as the court noted that some of the key witnesses were not duly summoned –”due to the mistake of the secretary of the court”. At the hearing five of the summoned experts also did not attend the hearing, some of them having been ill or out of town. At the hearing the three financial experts appeared before the court and their report was examined.

On 27 March 1996 the applicant submitted a fresh application for release on the ground that all evidence had already been gathered, and that therefore there was no danger of his obstructing the course of justice. The court decided to dismiss the application, holding that there were no new facts which required his release and that the length of pre-trial detention was not limited by statute. The applicant’s subsequent appeal was dismissed by the Supreme Court, in camera, on 28 June 1996.

On 7 May 1996 the hearing was adjourned to 16 and 17 September 1996 as the case-file was at the Supreme Court for the examination of one of the co- accused’s appeal against the Regional Court’s decision refusing his application for release on bail. In addition, one of the witnesses, although summoned, did not appear before the court.

The hearing was further adjourned to 29 October 1996 as a lay judge was unable to attend. Then, it was adjourned to the following day due to the absence of one of the co ‑ accused’s lawyers. The court ordered that police assistance should be provided to ensure the attendance of the witnesses who had been summoned, but had not appeared. 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 due to his ill health.

At the hearing of 30 October 1996, the applicant requested to be released on bail, stating that it was not justified to keep him in pre-trial detention for such a long time, only because the court had failed to appoint a substitute judge and to conduct a prompt trial. The application was dismissed on the same day on grounds similar to those previously stated. The applicant’s subsequent appeal to the Regional Court of 5 November 1996 was dismissed in camera on 11 November 1996 . The court held that the applicant’s detention pending trial was lawful, as it was ordered in accordance with domestic law and there were no new facts which would necessitate his release.

On 5 November 1996 the applicant also appealed to the Supreme Court against the Regional Court’s decision of 30 October 1996 on the grounds that he had a permanent address and a family and had already been questioned by the authorities. He further claimed that there was no danger of his obstructing the course of justice, since all the evidence had been gathered and almost all witnesses heard. He complained that the criminal proceedings were excessively lengthy due to the bad organisation of the trial by the Regional Court, and that therefore his detention pending trial was unlawful and infringed upon his civil rights. On 4 December 1996 this application was dismissed in the absence of the applicant and his lawyer. The Public Prosecutor was present and had apparently commented on the applicant’s appeal. The Court stated, inter alia , that:

“At the present moment, prima facie , there exist circumstances that make the applicant’s detention pending trial lawful. It cannot be considered that a danger of the applicant’s absconding, obstructing the course of justice or re-offending does not exist any longer, as this danger is presumed by the seriousness of the offence with which [the applicant] is charged.”

The hearing of 19 December 1996 had to be adjourned again as two of the summoned witnesses had not appeared before the court. The court ordered that police assistance should be provided to ensure the attendance of one of the key witnesses and asked one of the co ‑ accused to notify the court of the address of the witnesses for defence.

The last hearing was held on 28 - 31 January 1997. On 28 January 1997 the applicant’s application for release, submitted the same day, had been dismissed by the Plovdiv Regional Court. The key witness finally appeared before the court. The court decided not to order a re-hearing of four witnesses who had been heard during the preliminary investigation, despite the applicant’s request.

On 31 January 1997, the applicant was found guilty of having forged tax documents with a view to obtaining an unlawful gain for himself and others and of having suborned a witness. He was sentenced to twelve years’ imprisonment.

The Plovdiv Regional Court reserved the reasoning of its judgment. It was prepared on an unspecified date not earlier than three months following the delivery of the judgment.

On an unspecified date in 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence.

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 that he wished to withdraw. The hearing which was adjourned to 23 January 1998 resumed on 16 March 1998. By judgment of 16 March 1998 the court confirmed the applicant’s conviction and sentence.

On 22 March 1999 the Supreme Court of Cassation dismissed the applicant’s subsequent petition for review. From the minutes taken at the applicant’s arrest and his questioning the court came to a conclusion that the applicant’s right to defence was not infringed as he had been informed promptly about the accusations and charges against him, he understood them fully and gave further explanations. In respect of the applicant’s complaint that the Regional Court ordered the substitution of his lawyer in breach of his right to defence, the court held that justified as the same lawyer had defended two co-defendants with competing interests. It further found justified the Regional Court’s refusal to examine some evidence adduced by the applicant, as it concerned irrelevant matters and also because a sufficient number of corroborating evidence and witnesses had been examined by that court.

B. Relevant domestic law

1. Criminal Code

Section 212 §§ 1, 2 and 4 provides that a person who forges documents or utters forged documents with a view to obtaining an unlawful gain for himself and others shall be sentenced to up to eight years’ imprisonment. In serious cases of fraud and forgery of documents, the perpetrator may be sentenced to imprisonment of ten to twelve years.

Section 293 [in conjunction with Section 290 § 1] provides that a person who suborns a witness shall be sentenced to one year’s imprisonment, or to a pro bono work.

2. Code of Criminal Procedure

(a) Legal counsel

Sections 67 § 3 (3) and 68 provide, inter alia , that the competent organ shall terminate the power of attorney of a lawyer representing two co-accused persons if there is a conflict of interests.

Section 73 provides that an accused shall have the right that his legal counsel be present during his arrest and preliminary investigation and that he shall be informed of this right by the investigation authorities. Section 87 § 1 provides that the applicant shall be questioned in the presence of his lawyer if he so requests.

(b) 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’s obstructing the course of justice, absconding or committing further offences.”

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’s obstructing the course of justice, absconding or committing further offences.”

According to Section 93 para. 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).

(c) 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 Articles 3 and 14 of the Convention that his long detention amounted to inhuman and degrading treatment. In particular, he states that since his pre-trial detention was excessively lengthy he was deprived of his right to work and be remunerated. Therefore, he was discriminated against compared to convicted persons.

The applicant complains under Article 5 § 1 of the Convention that he was detained unlawfully. In particular, his detention was ordered twice for the same offence and 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.

The applicant complains under Article 5 § 3 of the Convention that he was not brought before a judge on either of the two occasions when he was arrested and detained pending trial. He further complains that his detention was excessively lengthy.

The applicant complains under Article 5 § 4 of the Convention that his applications for release were not examined speedily by the courts. The applicant further complains under the same article that the Regional Court and the Supreme Court failed to hold public hearings and that as a result the proceedings were not adversarial. He also invokes Article 13 of the Convention stating that there is no effective domestic remedy in respect of the alleged violations of Article 5 §§ 3 and 4 of the Convention.

The applicant further complains under Article 6 § 1 of the Convention about the unfairness of the criminal proceedings against him. He alleges that the judges were partial, having regard to the fact that the same panel of judges of the Plovdiv Regional Court participating in the first instance judgement had previously taken decisions on his pre-trial detention and had repeatedly refused to release him on bail.

He complains under the same provision that the criminal proceedings against him were excessively lengthy.

The applicant also complains under Article 6 § 2 of the Convention that the Supreme Court’s decision of 4 December 1996 breached his right to be presumed innocent, as “it was based on a presumption of guilt and on the understanding that the danger of his committing further offences, fleeing or obstructing the course of justice was presumed him being charged with a serious crime”.

The applicant further complains under Article 6 § 3 (b) and (c) of the Convention that he was twice arrested and questioned without the presence of a lawyer, that on several occasions the court adjourned the hearing without setting a new date for the trial which prevented him from planning the preparation of his defence, that he was deprived of his right to be defended by a lawyer of his own choosing and that he was not served with the reasoning of the first instance judgment on time, which interfered with his right to file an appeal with a higher court.

THE LAW

1. The applicant complains under Articles 3 and 14 of the Convention that the sole fact that he was detained for a long time amounted to inhuman and degrading treatment.

The Court finds nothing in the applicant’s submissions or the materials in the case which would give raise to an issue under Articles 3 and 14.

It follows that the complaints under Articles 3 and 14 of the Convention are inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that must be rejected under Article 35 § 4.

2. 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;

…”

The Court observes that the investigation authorities twice ordered applicant’s detention pending trial in connection with the same investigation. He was first detained on 4 October 1993 and was released on bail after one month. He was again arrested on 15 February 1994, as the investigation authorities suspected the applicant of having suborned a witness, thereby obstructing the course of justice. On 31 January 1997 the Regional Court found the applicant guilty for having forged tax documents and having suborned a witness.

In the light of all the material in its possession, the Court does not find any indication that the applicant’s detention was at any moment unlawful or ordered otherwise than “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1. It further considers that the detention until 31 January 1997 fell within the ambit of Article 5 § 1(c) of the Convention, as it was ordered for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed criminal offences. As regards the alleged lack of a reasonable suspicion, the Court is not convinced by the applicant’s arguments in this respect. The charges against the applicant 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 himself and others and that he might have suborned a witness.

Insofar as the applicant’s complaint also concerns his detention pending appeal, the Court observes that a detention “after conviction by a competent court” falls under 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 elements 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 of the Convention is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected under Article 35 § 4.

3. The applicant further complains that he was not brought promptly before a judge on either of the two occasions 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 is apparently related to the fact that under Bulgarian law, as it stood at the relevant time, neither investigators, before whom arrested persons appeared, nor prosecutors, who were competent to approve decisions for detention on remand, could be considered “officer[s] authorised by law to exercise judicial power” ( Nikolova v. Bulgaria , no. 31195/96, § 50, ECHR 1999-…). Since this complaint concerns certain provisions of the Code of Criminal Procedure, the existence of such provisions created a form of continuing situation in which an individual could - for a long time - 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] Yankov v. Bulgaria (dec.), no. 39084/97, 11.5.2000, unreported; Belchev v. Bulgaria (dec.) no. 39270/98, 11.5.2000, unreported; 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).

The first arrest of the applicant took place on 4 October 1993, on the prosecution authorities’ order and on 3 November 1993 he was released on bail. Since it cannot be inferred from the applicant’s submission whether he was brought before a judge in the meanwhile, 3 November 1993 is the point at which the running of the six-month period in respect of the present complaint started for the purposes of Article 35 § 1 of the Convention.

The second applicant’s arrest took place on 15 February 1994. From the applicant’s submissions it is clear that he was brought before a judge for the first time on 12 May 1994 which is therefore the point when the six-month period started to run, for the purposes of Article 35 § 1 of the Convention.

The applicant introduced his first letter with the European Commission of Human Rights on 15 January 1997.

It follows that the above complaints have been introduced out of the six months’ time ‑ limit under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

4. The applicant complains under Articles 5 § 3 and 13 of the Convention that his pre ‑ trial detention was unreasonably long and that he does not have an effective remedy in this respect.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints 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.

5. The applicant complains under Article 5 § 4 of the Convention that his applications for release were not examined speedily by the courts and that on several occasions the Regional Court and the Supreme Court failed to hold public hearings and as a result the proceedings were not adversarial. He also invokes Article 13.

According to the Court’s established case-law Article 5 § 4 of the Convention constitutes a lex specialis in relation to the more general requirements of Article 13 ( Nikolova v. Bulgaria , no. 31195/96, § 69, ECHR 1999-…). The Court considers that the complaints fall to be examined under Article 5 § 4, 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.”

a. The Court observes that the applicant has introduced his first letter with the Commission on 15 January 1997. Therefore, it finds that the applicant has introduced his complaints under Article 5 § 4 of the Convention out of the six months’ time-limit in respect of all proceedings on his application for release up to and including the proceedings which ended with the Supreme Court’s decision of 28 June 1996.

It follows that this part of the applicant’s complaints under Article 5 § 4 was introduced out of the six months’ time limit under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

b. As regards the remainder of the applicant’s complaints under Article 5 § 4 the Court considers that 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. 

6. The applicant complains under Article 6 § 1 of the Convention that the judges were partial and that the criminal proceedings against him were excessively lengthy.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints 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.

7. The applicant complains under Article 6 § 2 of the Convention that the Supreme Court’s decision of 4 December 1996 breached his right to be presumed innocent as “it was based on the presumption of guilt and on the understanding that the danger of his committing further offences, fleeing or obstructing the course of justice was presumed, him being charged with a serious crime”.

According to the Court’s case-law, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty (the Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p…, § 37).

The Supreme Court in the reasoning of its decision of 4 December 1996 only considered the existence of a danger of the applicant’s absconding, obstructing the course of justice or re-offending in connection to his application for release. The Court does not find that the reasoning in question reflects a preconceived idea that the applicant was guilty or that it involves anything in the nature of a verdict of guilt.

It follows that the complaint under Article 6 § 2 is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected under Article 35 § 4.

8. The applicant alleges under Article 6 § 3 (b) and (c) of the Convention that he was not served with the reasoning of the first instance judgment on time which interfered with his right to lodge an appeal, that on several occasions the Regional Court adjourned the hearing without setting a new date for the trial, that he was deprived of his right to be defended by a lawyer of his own choosing and that he was arrested and questioned without the presence of his lawyer.

As far as relevant, Article 6 § 3 reads as follows:

“Everyone charged with a criminal offence has the following minimum rights:

…

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

…”

As regards the applicant’s complaint that he was not served with the reasoning of the first instance judgment on time, the Court notes that this was done on an unspecified date in 1997, whereas the first hearing before the Supreme Court of Cassation , which examined the appeal against that judgment, was on 16 March 1998. The applicant must have had sufficient time to prepare his case for that hearing.

The applicant further complains that on several occasions the Regional Court adjourned the hearing without setting a new date for the trial which did not give him an adequate time to prepare the defence for those particular hearings. However, the applicant has not indicated the dates on which he was notified of the time for each hearing. Therefore, it has not been shown that he was not given a notice in due time to prepare for the next hearing.

The applicant complains that he was deprived of his right to be defended by a lawyer of his own choosing. The Court notes, however, that a clear conflict of interest was demonstrated between the applicant and another co-accused, which required that they should be represented by different lawyers. Furthermore, the applicant was then allowed to appoint another lawyer of his own choosing, and he, indeed, appointed two other lawyers who represented him before the Regional Court. The Court observes that the same lawyers who had defended him at the trial stage continued to defend him in the proceedings before the Supreme Court of Cassation . In these circumstances it does not appear that the fact that the Regional Court ordered the termination of his first lawyer’s power of attorney could be considered as an infringement of his right as protected by Article 6 § 3 (c) of the Convention.

Insofar as the applicant complains that he was twice arrested and questioned without the presence of a lawyer, the Court recalls that Article 6 applies at the stage of the preliminary investigation of a criminal case. In particular, Article 6 § 3 may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-I, p. 54, § 62).

The Court further recalls that Article 6 § 3 will normally require an accused to benefit from the assistance of a lawyer at the initial stages of police interrogation if the consequences of the accused’s attitude are decisive for the prospects of the defence in subsequent proceedings (see the above-mentioned John Murray judgment, p. 54, § 63).

In the instant case the Court observes that the applicant failed to specify whether he requested the presence of a lawyer when he was arrested and questioned, as he was entitled to do under domestic law. He also did not complain that he had not been informed by the authorities of this right. Furtheron , from his submissions it appears that as early as in November 1993 he already had a lawyer. Taking into account the above, the Court finds that the applicant has failed to substantiate his complaint .

The Court finds that therefore the complaints under Article 6 § 3 (b) and (c) of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, [unanimously,] [by a majority,]

DECIDES TO ADJOURN the examination of the applicant ’s complaints that his pre-trial detention was unreasonably long; that the proceedings in the examination of his appeals for release which commenced with the request for release of 30 October 1996 and resulted in the Supreme Court’s decision of 4 December 1996 were not adversarial and were not conducted speedily; that the first instance judges were partial; and that the criminal proceedings against the applicant were excessively lengthy;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President