FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38884/97

by Borislav NIKOLOV 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 5 August 1997 and registered on 6 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Bulgarian national born in 1981, was a minor at the material time. 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 parties, may be summarised as follows.

1. The applicant’s detention

On 5 April 1997 the applicant was arrested on the suspicion of having destroyed a car with the use of explosives. On the same day he was brought before an investigator who charged him with arson under Section 333 in conjunction with Sections 330 § 1 and 3 of the Penal Code ( Наказателен кодекс ). The investigator also decided to detain the applicant on remand. This decision, which apparently was confirmed on an unspecified date by a prosecutor, only referred to Section 152 § 1 of the Code of Criminal Procedure.

On 2 May 1997 the applicant appealed to the District Prosecutor’s Office in Plovdiv requesting his release. On 20 May 1997 this request was refused on grounds that the applicant was charged with a “serious wilful crime” ( тежко умишлено престапление ), within the meaning of Section 152 § 1 of the Code of Criminal Procedure ( Наказателно процесуален кодекс ).

On 29 May 1997 the applicant’s mother appealed to the Regional Prosecutor’s Office against the refusal of the District Public Prosecutor. She requested his release on the ground that he needed medical supervision and possibly surgery. A copy of a medical certificate was also served, indicating that the applicant was suffering from a tumour to his right hand which was reappearing despite two surgical operations for its removal.

On 12 June 1997 the applicant’s lawyer requested the Regional Investigation Authorities (OSS) to order his client’s examination by a medical doctor with a view to establishing his mental state and whether or not the tumour to his hand required treatment. This request has apparently been granted.

By decision of 4 July 1997 the Regional Public Prosecutor’s Office refused to release the applicant. The decision stated that the district prosecutor had erred when he had relied on Section 152 § 1 of the Code of Criminal Procedure as the crime of which the applicant had been accused was punishable, in the case of a minor, by up to three years’ imprisonment, and therefore Section 152 § 1 of the Code, which concerned “serious wilful crimes” was not applicable. However, it was clear from the findings of the investigation that there existed a “prima facie” danger of absconding, committing further offences, or obstructing the investigation, such a danger being a ground for detention on remand under Section 152 § 4 of the Code of Criminal Procedure.

On 9 July 1997 the applicant’s lawyer submitted to the District Prosecutor’s Office another request for release. He stated that the investigation during which the applicant had fully co-operated and had made confessions, was completed, that the applicant needed medical treatment, that he was mentally unstable as it transpired from the opinion of a psychiatrist who had examined him while in detention, and that Section 378 of the Code of Criminal Procedure allowed detention on remand of minors only in exceptional circumstances. The applicant has not substantiated whether this request was examined.

On 5 August 1997 the applicant’s lawyer appealed to the District Court in Plovdiv against his client’s detention on remand and requested a public hearing . He relied on the arguments already raised before the prosecutors and on the Convention. On the same day the application was sent to the District Public Prosecutor to complete the applicant’s case-file concerning the preliminary investigation against the applicant. On 21 August 1997 the court received the completed case-file and listed the appeal for a hearing on 25 August 1997.

On 8 August 1997 the applicant’s mother appealed to the Chief Public Prosecutor against the decision of 4 July 1997 of the Regional Public Prosecutor’s Office. On 18 August 1997 a prosecutor at the Chief Public Prosecutor’s Office transmitted this appeal to the District Court.

On 25 August 1997 the court adjourned the hearing to 16 September 1997, as the applicant’s lawyer had not been summoned properly. The court also ordered a medical report and appointed three medical experts.

On 29 August 1997 the applicant was brought to a hospital where he was diagnosed as suffering from pleurisy, and later from tuberculosis. He remained in hospital for an unspecified period of time and underwent intensive treatment.

On 5 September 1997 the applicant’s lawyer submitted to the District Court a request for the appointment of medical experts to examine whether the conditions of detention at the premises of the investigator’s office would pose a threat to the applicant’s health. This request was granted.

On 8 September 1997 the experts found that the applicant was mentally healthy. However, he needed to stay in hospital for at least another 45 days which had to be followed by a sanatorial placement. The experts concluded that a renewed detention of the applicant at the premises of the investigator’s office in Plovdiv , if ordered within the upcoming six to eight months, would put at peril the boy’s life and health.

The applicant and his lawyer were both present at the hearing of 16 September 1997 before the District Court. After having heard the medical expert report, the judge decided to substitute the applicant’s detention on remand by a more lenient measure - parental supervision. She further stated that although at the beginning the applicant was detained under Article 152 § 1 of the Code of Criminal Procedure which was not applicable in his case, this defect was remedied at a later stage by the higher prosecutor who in the decision of 4 July 1997 had noted the mistake and had confirmed the applicant’s pre-trial detention under Section 152 § 4.

It appears that on an unspecified date the applicant was escorted back to prison. On 17 September 1997 the District Court transmitted its decision of 16 September 1997 to the District Public Prosecutor for execution. On an unspecified date the applicant’s mother signed the necessary papers and the applicant was released on 23 September 1997.

On 22 October 1997 the regional investigation authorities completed the file concerning the preliminary investigation against the applicant and on 30 October 1997 the District Public Prosecutor finalised the applicant’s indictment under Section 333 in conjunction with Section 330 of the Penal Code. On 29 May 1998 the applicant was found guilty and sentenced to one year’s imprisonment. The serving of his sentence has been suspended .

2. The request to consult the case-file

On 15 September 1997 the applicant’s lawyer requested to consult the investigator’s case-file. This request was refused by judge Shishkova of the District Court who had the case-file at that time in view of the upcoming hearing on the applicant’s appeal against detention. The applicant’s lawyer submits that he learned of an informal agreement between the Prosecutor’s Office and the District Court not to allow consultation of the case-file while the investigation was still pending.

During the hearing of 16 September 1997 the applicant’s lawyer asked for an adjournment because he had been refused access to the case-file. This was rejected. He then protested against the court’s refusal to allow consultation of the case-file. However, the minutes of the hearing, which consisted of the parties’ statements as summarised by the judge, only recorded that “the applicant’s lawyer had not consulted the case-file”.

On 17 September 1997 the applicant’s lawyer addressed to the District Court a request in which he stated inter alia that judge Shishkova , when summarising his statements for the record, had given an untrue or inaccurate account of what had been said. The lawyer requested the amendment of the minutes from the hearing, stating that the behaviour of the judge was close to a criminal conduct. On 23 September 1997 the applicant’s lawyer complained to the President of the District Court about the judge’s refusal to enter in the minutes his request to consult the applicant’s case-file. On 24 September 1997 the minutes were amended and on 26 September 1997 the applicant’s lawyer withdrew his request.

On 23 March 1998, upon the request of judge Shishkova , the District Prosecutor’s Office in Plovdiv opened criminal proceedings under Section 148 § 1(3) of the Penal Code for defamation against the applicant’s lawyer. No further detail is submitted as to the follow-up of these proceedings. In an interview given to a newspaper on 8 February 1999, a prosecutor mentioned the applicant lawyer’s name in a negative context as someone who had offended a judge.

3. The applicant’s power of attorney

The applicant’s power of attorney of 4 September 1997, submitted together with the application form, only contained the applicant’s signature. A power of attorney dated 4 August 1997 which was signed by him and his mother was received on 17 December 1998, together with his written observations. The applicant’s mother also signed the declaration of the applicant’s means of 5 May 1998 stating that the applicant wanted to be represented by Mr Ekimdjiev before the Commission. She also submitted a signed declaration dated 4 January 1999 by which she confirmed her consent as regards the submission of the application and the representation power given to Mr Ekimdjiev .

B. Relevant domestic law

A crime under Section 333 in conjunction with Section 330 §§ 1 and 3 of the Penal Code is a wilful infliction of substantial damage to objects with the use of explosives.

This crime is punishable with three to twelve years’ imprisonment if committed by an adult and by up to three years’ imprisonment if committed by a minor (Section 63(1)(2) of the Penal Code).

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

Section 152 of the Code of Criminal Procedure concerns the grounds for the detention of an accused on remand. This provision distinguishes between the cases where the charges concern a “serious wilful crime” and all other cases. Under Section 152 §§ 1 and 2, as in force at the relevant time, and according to the practice of the Supreme Court ( Върховен съд ) ( опр. no. 1 от 4.5.1992 г . по н.д. No. 1/92, Бюлетин на ВС, No. 9/1992; опр . No. 4 от 21.2.1995 по н.д. 76/1995 г .), where the charges concern a “serious wilful crime” the general rule is that the accused shall be detained unless it is proven beyond doubt that there exist no dangers of absconding, committing other crimes or obstructing justice. These dangers are to be considered excluded only in exceptional circumstances such as where the accused is seriously ill. Under Section 152 § 4, where the case concerns a crime which is not a “serious wilful crime” the accused shall be detained only if it is established that there exists a danger of absconding, committing other crimes or obstructing the course of justice.

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.

Section 378 § 1(1) and (3) of the Code of Criminal Procedure provides that a minor charged with having committed a criminal offence may be placed under guardian’s or parental supervision. Section 378 § 2 provides that minors may be detained on remand only in exceptional circumstances. The release of a minor detained on remand may be effectuated against his parent or guardian’s signature and a declaration that he or she will supervise him and that the minor will appear before an investigator or the court.

Section 2 § 1 of the Law on State Responsibility for Damage to Individuals (Закон за отговорността на държавата за вреди причинени на граждани) provides that a claim for compensation may be submitted to a civil court in cases where a detention order has been quashed for “lack of legal basis”.

COMPLAINTS

1. The applicant complains invoking Article 5 § 1 of the Convention that his arrest and detention were unlawful and not in conformity with the Convention. He submits that his case was not exceptional within the meaning of Section 378 § 2 of the Code of Criminal Procedure. Furthermore, the investigator and the district prosecutor relied on Section 152 § 1 of the Code of Criminal Procedure on the erroneous assumption that the applicant was charged with a “serious crime”. The Regional Public Prosecutor noted this error but instead of releasing the applicant, held that his detention was justified under Section 152 § 4.

Furthermore, the provision of Section 152 § 1 of the Code of Criminal Procedure, as interpreted by the courts, is in consistent with Article 5 of the Convention which does not provide for a possibility to detain someone on remand on the sole ground that he is accused of having committed a serious wilful crime. The applicant submits that the finding of the Regional Public Prosecutor that there existed a danger of his absconding, committing crimes, or obstructing justice, was not supported by reference to any evidence. The applicant asserts that he was kept in pre-trail detention unnecessarily for five months and sixteen days.

The applicant also complains that his detention between 16 September 1997, when the Court decided to release him, and 23 September 1997, when he was actually released, was unlawful.

2. The applicant complains under Article 5 § 3 of the Convention that there has been a violation of his right to be brought promptly before a judge or other officer exercising judicial power as the investigator and the prosecutor did not meet the criteria for a judge or an officer exercising judicial power.

3. The applicant complains under Article 5 § 4 of the Convention that his appeal to the District Court was examined 42 days following its submission.

The applicant also complains under Article 5 § 4 of the Convention that his lawyer was refused access to the case-file which did not allow him to prepare properly for the habeas ‑ corpus proceedings.

He also invokes Article 13 of the Convention.

4. On 17 December 1998 the applicant submitted a fresh complaint under Article 5 § 5 of the Convention that he was deprived of a right to request compensation for the alleged unlawful detention.

5. The applicant’s lawyer submits that the criminal proceedings for defamation instituted against him aimed at exerting psychological pressure in respect of the present application to the Commission and that therefore there has been a violation of Article 34 of the Convention.

THE LAW

1. The Government invited the Court to reject the application. They submitted that the applicant’s lawyer had not been given a proper power of attorney when he introduced his first letter with the Commission on 5 August 1997. The applicant was only 16 years old at the time when he filed the application and did not have legal capacity. Therefore, the power of attorney given by him on 4 September 1997 was not valid as it was not signed by his legal guardian. In addition, the application form of 6 October 1997 was not signed by the applicant, but only by the applicant’s lawyer.

The Government maintained that the applicant had not complied with the six months’ time-limit set out in Article 35 § 1 of the Convention. In particular, if in the applicant’s case 4 July 1997 is the starting point for the purpose of the six months’ time-limit, then the time-limit expired on 4 January 1998. In the Government’s opinion no valid application signed by the applicant with the consent of his guardian reached the Commission until that date.

The applicant replied that on 4 August 1997 he and his mother had signed a power of attorney which, due to an omission, had not been enclosed to the applicant’s first letter to the Commission. The applicant submitted a copy of this power of attorney later, together with his written observations. It is true that another power of attorney, that of 4 September 1997, which was made on the Commission’s paper and submitted together with the application form, contained only the applicant’s signature. However, the applicant’s mother also signed the declaration of the applicant’s means of 5 May 1998 clearly stating that the applicant wanted to be represented by Mr Ekimdjiev before the Commission. In any event, if his lawyer had not been given a proper power of attorney at the beginning, this was remedied by the fact that the applicant’s mother approved the lawyer’s appointment. In this respect the applicant submitted a declaration dated 4 January 1999, signed by his mother, stating that she confirmed her consent as regards the submission of the application and the representation power given to Mr Ekimdjiev .

The Court notes two powers of attorney of the applicant: one of 4 September 1997 which was only signed by him and another one which was received together with the written observations on 17 December 1998 and which was signed by the applicant and his mother. The issue is whether it can be considered that the applicant’s lawyer has been properly empowered to represent the applicant before the Court right from the outset of the proceedings, although another power of attorney bearing the applicant’s mother signature, reached the Court only at a later date.

It should be observed that the applicant was still in prison at the time when the first letter was sent to the Commission and when he signed the power of attorney of 4 September 1997 and that he was represented by the same lawyer in the domestic proceedings, who was apparently properly empowered. The Court finds that the mere fact that the power of attorney of 4 September 1997 did not bear the applicant’s mother’s signature does not indicate in itself that she did not consent her son to be represented by Mr Ekimdjiev before the Convention institutions. Moreover, she expressed her consent as regards the submission of the application and the representation power given to Mr Ekimdjiev in her declaration of 4 January 1999, in the power of attorney signed by her and received with the written observations, and by signing the declaration of the applicant’s means. The Court also recalls its Rule 45 § 1 according to which any application made under Article 34 of the Convention shall be signed by the applicant or his representative. The Court finds, therefore, that the application has been validly submitted and that there is no reason why the first letter to the Commission dated 5 August 1997 should not be considered as the date of introduction of the application. In these circumstances it also follows that the application has been submitted within the six months’ time-limit under Article 35 § 1. Therefore, the Court rejects the Government’s preliminary objections raised under Article 35 §§ 1 and 2.

2. The Government further maintained that the applicant had not exhausted all domestic remedies concerning the alleged violations under Article 5. In particular, the applicant did not appeal against the Regional Public Prosecutor’s decision of 4 July 1997 to the Chief Public Prosecutor’s Office. In addition, he was entitled to file an application for release with a court, which he only did on 5 August 1997. He could have also complained to a court under the Law on the Responsibility of the State for Damage Caused to Individuals and sought compensation for the alleged unlawful detention.

The Government further objected that the applicant had not raised before the domestic authorities his complaint under Article 5 § 1 that he was unlawfully detained until the date of his release on 23 September 1997.

The applicant firstly submitted that under the domestic law and practice at the time pre-trial detention was an imperative measure imposed on a person accused of having committed a serious wilful crime. According to the Supreme Court’s practice the danger of an accused’s absconding, obstructing the course of justice, or committing further offences always exists if he is charged with a serious offence. The judicial measure imposed and the release of a detainee are thus completely dependent on the public prosecutor who determines the charges. As the courts do not examine in-depth applications for release, it appears that there is no effective domestic remedy against the public prosecutor’s decision to detain an accused person.

Secondly, the applicant pointed out that an amendment to the Code of Criminal Procedure was adopted on 13 August 1997, which provided that a court should examine an application for release at a public hearing. Considering this to be a more effective remedy the applicant filed an application with the competent court on 5 August 1997, instead of appealing to a higher public prosecutor. In any event, the applicant’s mother appealed against the public prosecutor’s decision of 4 July 1997 to a higher public prosecutor, but her appeal was transmitted on 18 August 1997 to the District Court.

The Court recalls that in order to comply with the rule of exhaustion of domestic remedies, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged ( Buscarini and Others v. San Marino [GC], no. 24645/94, § 26, ECHR 1999 -).

The Court observes that the applicant has appealed against the detention order to the public prosecutor’s authorities and to a court and has therefore made a normal use of the remedies available under the domestic law at that time. As regards the possibility to apply to a court under the Law on the Responsibility of the State for Damage Caused to Individuals, the Court considers that the applicant was not required to resort to this remedy, regard being had to the fact that, when examining a claim under this law, the courts would not have jurisdiction to decide on the lawfulness of detention.

It follows that the remainder of the Government’s preliminary objections must be rejected.

3. The applicant complains that his arrest and detention were unlawful and therefore in contravention of Article 5 § 1 of the Convention. He also submits that his detention was not justified as there was no danger of absconding or re-offending.

The Government maintained that the imprecise reference to Section 152 § 1 of the Code of Criminal Procedure did not render the applicant’s detention unlawful, taking into consideration the nature of the offence with which he was charged. In any event, Section 152 § 4 represented a clear legal basis for the applicant’s detention. This was confirmed by the public prosecutor’s decision of 4 July 1997 which established that there was a danger of the applicant’s absconding, committing further offences, or obstructing the course of justice.

The Government further submitted that the applicant had been detained on remand in accordance with the domestic law and procedure as he was 16 years old, did not go to school or work, lived only with one of his parents, associated with people from the criminal milieu and was accused of having committed a grave offence. Therefore, there existed exceptional circumstances to impose a pre-trial detention as provided for under Section 378 § 2 of the Code of Criminal Procedure.

The Government challenged the applicant’s allegation that he had been unlawfully deprived of liberty from 16 to 23 September 1997. In particular, the domestic law allows a reasonable delay before release, in order to give some time to the responsible body, the OSS, to implement the court’s decision. The decision of the District Court of 16 September 1997 was transmitted to the public prosecutor on 17 September 1997, who further transmitted it to the OSS. The OSS had ultimately to give instructions to the prison authorities. The OSS also had to check if other reasons for detaining the applicant existed. The applicant’s belongings had to be returned. Furthermore, in cases when a pre-trial detention of a minor is substituted by parental supervision, the domestic law requires to have one of the parents sign the papers necessary for his release. On 16 September 1997 none of the applicant’s parents attended the court’s hearing and only his mother’s address was available. Therefore, additional time was consumed by the efforts to contact the applicant’s mother.

The applicant replied that he had been detained under Section 152 § 1 of the Code of Criminal Procedure and that no facts whatsoever were given by the public prosecutor to show that there was a danger of his absconding, obstructing the course of justice or committing further offences. Therefore, the applicant’s detention from 5 April until 4 July 1997 was unlawful as it was not ordered in accordance with the domestic law and procedure. The applicant’s detention continued to be unlawful after the public prosecutor’s decision of 4 July 1997, despite the fact that he had noticed the mistake and applied another legal ground for the applicant’s detention. This was so because he still did not give any fact as to the existence of a danger that the applicant might abscond, commit further offences or obstruct the course of justice. On 29 May 1997 the applicant’s submissions about his ill-health were not dealt with by the public prosecutor, although this would have shown that the applicant would not have been physically able to abscond.

As to his detention from 16 to 23 September 1997, the applicant submitted that it was unacceptable that a seriously ill minor, whose release had been ordered by a judge, could be kept in detention for seven additional days without any legal basis due to some “technical and administrative formalities”. According to the domestic law, when a defendant is acquitted he shall be liberated immediately while still in the courtroom. Therefore, by analogy, a detainee should be immediately released from pre-trial detention when it is substituted by a more lenient measure.

The Court considers that the present complaint falls to be examined both under Article 5 § 1 invoked by the applicant and Article 5 § 3 of the Convention, according to which everyone deprived of his liberty in accordance with § 1 (c) shall be entitled to trial within a reasonable time or to release pending trial.

Having examined the above complaint, the Court finds that it raises serious questions of fact and law which are of such complexity that its determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

4. The applicant complains under Article 5 § 3 of the Convention that there has been a violation of his right to be brought before a judge or other officer exercising judicial power as the investigator and the prosecutor did not meet the criteria for a judge or an officer exercising judicial power. Article 5 § 3 provides as follows:

“Everyone arrested or detained in accordance with the provisions § 1 (c) of

this article shall be brought promptly before a judge or other officer authorised

by law to exercise judicial power…”.

The Government stated that the applicant had been brought before a public prosecutor who according to the Code of Criminal Procedure fulfils the criteria to be considered as “an officer authorised by law to exercise judicial power”. On the other hand, the applicant had a possibility under the domestic law to submit an application for release to the court. However, he did this only after four months from the date when he was detained, which demonstrated that he considered the public prosecutor to be an independent and impartial body.

The applicant contested the Government’s submission that the public prosecutor could be seen as an officer authorised by law to exercise judicial power. In his particular case, he was detained by the decision of an investigator, who is subordinated to the public prosecutor. The public prosecutor only inspects the materials of the case and decides on pre-trial detention without having met the applicant in person. Taking into consideration the domestic law and practice, in particular that the same public prosecutor conducts the preliminary investigation, decides on detention on remand and prepares and submits the indictment to the court and that he is later a party in the criminal proceedings, the applicant maintained that neither the prosecutor nor the investigator could be considered officers authorised by law to exercise judicial power. The applicant emphasised that the Court had already decided on this issue in the case of Assenov and Others v. Bulgaria (judgement of 28 October 1998, Reports 1998-VIII).

Having examined the above complaint, the Court finds that it raises serious questions of fact and law which are of such complexity that its determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

5. The applicant complains that his appeal for release to the District Court was examined 42 days after its submission. The applicant also complains that his lawyer was refused access to the case-file which deprived him of an opportunity to prepare for the habeas corpus proceedings. He invokes 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 Government stated that the delay in the examination of the application was caused by the applicant’s lawyer. Firstly, on 5 August 1997 he requested a public hearing, which took more time to organise. The court immediately took all the necessary steps and sent the case-file to the public prosecutor to complete it. Secondly, the public hearing of 25 August 1997 had to be adjourned due to the absence of the applicant’s lawyer.

In respect of the alleged refusal of access to the case-file, the Government observed that the applicant was not a victim as there were no direct or indirect consequences for him. Furthermore, according to Section 214 of the Code of Criminal Procedure the case-file may be consulted only when the preliminary investigation is concluded. In the instant case, at the time of the applicant’s appeal to the District Court the preliminary investigation had not yet been concluded. In addition, between the two hearings the applicant’s lawyer had 20 days to react and request to consult the case-file, whereas he did so only one day before the second hearing was due to take place. It followed that the applicant’s lawyer abused the right to consult the case-file.

The applicant, in response to the Government’s observation that the hearing of 25 August 1997 was adjourned due to his lawyer’s absence, submitted that his lawyer had not been summoned properly. In any event, the Government allegedly did not explain why the court needed three weeks to hold a public hearing.

The applicant added that in any event the court was under an obligation under Article 5 § 4 to examine the appeal speedily. It was inconceivable that a public prosecutor would need 16 days to “complete” an applicant’s file for a public hearing due to “technical and procedural” problems. In addition, in accordance with the amendment of 13 August 1997 of the Code of Criminal Procedure, the court was under an obligation under domestic law to examine the application for release at a public hearing and within three days.

The applicant further submitted that the court had violated his right to equality of arms when it had refused to grant his lawyer’s request to consult the case-file. The applicant claimed that he could still be considered a victim, although his release was ordered at that hearing. In particular, his lawyer could have prepared his defence more effectively and addressed all arguments of the public prosecutor in respect of the applicant’s pre-trial detention. The practical consequence of this was that he was released from detention because he was ill and not because his detention was unlawful. Had the District Court made a finding in this latter respect, that would have given him a right to seek compensation under the Law on the Responsibilities of the State for Damage Caused to the Individuals.

Having examined the above complaints, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

6. On 17 December 1998, the applicant submitted a fresh complaint under Article 5 § 5 of the Convention that he was deprived of the right to request compensation for the alleged unlawful detention.

Noting the date of introduction of the above complaint, as well as the facts that the applicant was released on 23 September 1997, and that after that date there have been no proceedings concerning the lawfulness of his detention or the compensation claimed, the Court finds that the complaint under Article 5 § 5 is inadmissible for failure to observe the requirements of Article 35 § 1 of the Convention. It must be therefore rejected in accordance with Article 35 § 4 of the Convention.

7. The applicant complains that the criminal proceedings for defamation instituted against his lawyer aimed at exerting “psychological pressure” in respect of the present application and that therefore there has been a violation of Article 34 of the Convention. The Government have not commented.

The Court observes that at the origin of this complaint are personal remarks of the applicant’s lawyer in respect of a judge. No further details are provided as to the follow-up of the defamation proceedings. The Court finds that the applicant has failed to substantiate his allegation that these proceedings directly impeded him to continue the proceedings before the Court.

It follows that this complaint is 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,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaints that his detention was unlawful and not justified, that he was not brought promptly before a judge, that his judicial appeal against detention was examined with a substantial delay and that he was refused access to the case-file;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President