FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44062/98 by Nikolai HAMANOV against Bulgaria

The European Court of Human Rights ( First Section ), sitting on 11 May 2000 as a Chamber composed of

Mr G. Ress, President , Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mr M. Pellonpää, 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 7 July 1998 and registered on 24 October 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolai Hamanov , is a Bulgarian national, born in 1963 and living in Plovdiv . He is represented before the Court by Mr Mihail Ekimdjiev , a lawyer practising in Plovdiv .

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

A. Particular circumstances of the case

The applicant was bank a manager in Plovdiv .

In 1996 a preliminary investigation no. 300/96 was opened by the Plovdiv District Public Prosecutor against the applicant and eight other persons in respect of the lawfulness of a number of financial transactions. It appears that throughout the investigation there were several modifications of the charges.

On 12 March 1996 the applicant was detained on remand under section 282 of the Criminal Code on suspicion of having endorsed 35 transfers of money out of Bulgaria in breach of his professional duties with a view to obtaining an unlawful gain for others. He was also charged with unlawful possession of a firearm.

During the preliminary investigation the District Public Prosecutor and the investigator heard, inter alia , 9 accused persons and 47 witnesses and examined various financial and banking documents, payment orders, reports from searches of the premises and ballistic experts and the report of 12 February 1997 prepared by a handwriting expert. On 14 November 1996 the applicant was questioned by the District Public Prosecutor. No further information is available concerning the course of the investigation.

The preliminary investigation was completed on an unspecified date between February and April 1997. An indictment was submitted to the District Court on 20 June 1997. The District Court listed a hearing for September 1997. The applicant stated that till September 1997, when the trial started, he had submitted many appeals against his pre-trial detention to the public prosecutor and the Plovdiv District Court. However, he has neither submitted any documents nor provided further details in this respect.

This first trial hearing took place between 17 and 27 September 1997. The court heard some of the witnesses, whereas others, albeit summoned, did not appear. The court decided that it needed to examine a financial expert’s report and adjourned the trial to 25 November 1997.

A further adjournment to 7 January 1998 was ordered as some of the witnesses who had been summoned did not attend and the expert’s report had not been finalised. The trial resumed on 7 and 8 January 1998. The court adjourned the hearing as some summoned witnesses had not appeared and ordered an additional financial report.

At the hearing on 8 January 1998, before the Plovdiv District Court, the applicant’s lawyer appealed against his pre-trial detention on the grounds that he did not have any previous criminal record, that there were no facts confirming that he would commit further offences or obstruct the course of justice, that he had a permanent address and that his family was in a difficult psychological and financial situation. The court dismissed the appeal holding, inter alia , that the applicant’s arguments and his allegation that the establishment of the facts had been finalised did not exclude the existence of a danger of absconding, committing further offences or obstructing the course of justice. On an unspecified date the applicant’s subsequent appeal was dismissed by the Plovdiv Regional Court on the ground that there were no new circumstances to show that there was no danger of his absconding, obstructing the course of justice or committing further offences.

The hearing in the applicant’s trial which had been scheduled for 9 April 1998 was adjourned to 6 July 1998 and then to 19 October 1998 due to another co- acused’s ill health.

On 13 April 1998 the applicant appealed to the President of the Plovdiv District Court against the alleged unlawfulness of his detention on the grounds that he had a permanent address and that there were no facts indicating that he intended to abscond or to obstruct the course of justice. On 23 April 1998 that court dismissed his appeal on the following grounds:

“The court holds that the appeal to terminate the pre-trial detention of the accused Nilolai Hamanov is ill founded. The accused is charged with grave intentional offence and there is still a danger that he might obstruct the course of justice, or commit further offences. It follows that the preventive measure [pre-trial detention] must be upheld.”

On 11 May 1998 his subsequent appeal was dismissed by the Plovdiv Regional Court which held, inter alia , that there were no new facts or arguments supporting his appeal.

On 6 July 1998 the District Court again dismissed the applicant’s renewed application for release on the ground that there were no new facts which would exclude any existence of a danger of the applicant’s obstructing the course of justice or absconding. On 27 July 1998 the Regional Court found that the applicant’s further appeal had been ill founded, holding that according to the Code of Criminal Procedure a pre-trial detention was imperative in the case of an accused charged with a grave offence. Furthermore, that court found that there were no facts to corroborate the alleged lack of a danger of the applicant’s absconding or obstructing the course of justice.

On 12 August 1998 the applicant again appealed against his pre-trial detention to the District Court on the ground that it had been continuing for 29 months. On 10 September 1998 that court dismissed the appeal, as the next hearing had been set down for 19 October 1998.

On 30 October 1998 the applicant was found guilty of having ordered money transfers abroad in violation of relevant banking regulations and of having signed as surety, on behalf of the bank and in breach of his duties as its manager, promissory notes issued by third persons. He was also convicted for having possessed a firearm without authorisation and sentenced to nine years’ imprisonment.

On 19 November 1998 the applicant appealed against his conviction complaining, inter alia , that neither he nor his lawyer had had the opportunity to examine five witnesses who had been heard during the preliminary investigation.

On 6 December 1999 the Plovdiv Regional Court held its first hearing, which was adjourned to 13-17 March 2000, due to another co-appellant’s health problems.

B. Relevant domestic law and practice

1. Criminal Code ( Наказателен кодекс)

Section 282

“(1) A person [exercising a function of managing another person’s property or an professional function], who acts in breach or dereliction of his or her professional duties, or exceeds his or her power or rights with a view to obtaining a material gain for himself or others or inflicting damage to others, and thus causes harm or substantial damage, shall be punished with up to five years’ imprisonment…”

The third paragraph of section 282, read in conjunction with the first and the second paragraphs of the same provision, provides for a punishment of three to ten years’ imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high ranking post.

2. Code of Criminal Procedure ( Наказателно - процесуален кодекс)

a) Pre-trial detention

Section 152 insofar as relevant, reads as follows

“(1) Where the accused is charged with having committed a serious offence with intent he shall be detained pending trial.

(2) In cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused evading justice or committing further offence.”

Paragraph 3 of section 152, which was in force until August 1997, provided that the application of paragraph 2 of the same provision was excluded where other criminal proceedings for a publicly prosecuted crime were pending against the accused person, or where the accused was a recidivist.

Section 93 § 7 of the Criminal Code defines an offence as “serious” if it is punishable by more than five years’ imprisonment or a heavier punishment.

As interpreted by the Supreme Court practice section 152 § 2 of the Code of Criminal Procedure applies when a danger of absconding, obstructing the course of justice or committing further offences is objectively excluded as, for example, in the case of an accused who is seriously ill, elderly, or in detention on other grounds such as for 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).

An amendment to section 152 was introduced in 1997. It provides that detention pending the preliminary investigation in a criminal case cannot exceed one year or two years, if the accused is charged with an offence punishable by fifteen years’ imprisonment or a heavier punishment. This provision does not concern detention after the commencement of the trial. No statutory time-limit exists in this respect.

b) Judicial review of pre-trial detention

Bulgarian law distinguishes between appeals against detention during the course of the preliminary investigation and appeals against detention after the commencement of the trial. The former were governed by section 152 § 5 of the Code of Criminal Procedure which, as in force at the material time and until August 1997, provided as follows:

“A person who has been detained shall be immediately afforded an opportunity to lodge an appeal against detention with the court having jurisdiction. The court shall rule within three days from the date of the appeal. Its decision shall be final.”

The practice at the material time was for appeals against pre-trial detention to be heard in camera, without the parties being present. If the appeal was dismissed, the court did not notify the detained person of the decision taken.

Since August 1997, with the entry into force of the new section 152a of Code of Criminal Procedure, an oral hearing is provided for in such cases.

According to section 304 § 1 at the trial stage of the criminal proceedings the detainee’s requests for release are examined by the trial court. The law 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 these 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 a seven day time-limit (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 having received the appeal, the trial court, sitting in camera, shall decide whether there exist grounds to annul or alter its decision. If it does not find a reason to do so the trial court shall transmit the appeal to the higher court. Before doing so the trial court must communicate the appeal to the prosecutor and receive his written observations (section 348 § 4 in conjunction with section 320). The law does not require the communication of the prosecutor’s observations to the appellant.

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

As to the relevant domestic practice, the First Criminal Division of the Supreme Court has held that, in deciding on appeals against pre-trial detention, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order ( опред. No. 24 от 23.5.1995 по н.д. 268/95, I н.о. на ВС, Сб. 1995, стр. 149 ).

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention was arbitrary, as under domestic law any suspect charged with having intentionally committed an offence must remain in detention pending trial. He further complains that the warrants for his arrest did not contain any reasoning as to the existence of a reasonable suspicion against him, nor as regards the alleged danger of absconding, obstructing the course of justice or committing further offences.

The applicant complains under Article 5 § 3 of the Convention that upon his arrest he was not brought promptly before a judge. The applicant complains under the same Article that his detention was unreasonably lengthy. He argues that there were no sufficient reasons justifying his long detention and that there were delays in the proceedings.

The applicant complains under Article 5 § 4 of the Convention that his judicial appeals against detention were not examined speedily by a court. He complains about the following sets of proceedings: the application for release submitted on 13 April 1998, which was rejected by the first instance court on 23 April 1998 and by the second instance court on 14 May 1998; the appeal against the first instance court refusal to release the applicant which was submitted on 6 July 1998 and dismissed on 27 July 1998; and the application submitted on 12 August 1998 which was rejected by the first instance court on 10 September 1998.

The applicant further complains under Article 5 § 4 that the judicial review was only a formal one.

The applicant further complains under Article 5 § 5 of the Convention that domestic law does not secure his right to compensation for the alleged violations of Article 5.

The applicant also complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively lengthy. In particular, there was a period of inactivity from April to August 1997, that there were substantial intervals between the hearings of the Plovdiv District Court, that the court did not take the necessary measures for witnesses and expert witnesses to be summonsed properly and that the Plovdiv Regional Court scheduled his first hearing after almost one year and one month.

The applicant complains under Article 6 §§ 1, 2 and 3 of the Convention in respect of the alleged unfairness of the proceedings. He submits that the district court judges were partial as the same judges decided the appeals against detention and the merits of the case, and that the hearing of witnesses during the preliminary investigation was conducted without the applicant or his lawyer being present. He further complains that the court failed to apply the presumption of innocence in the proceedings, as the public prosecutor based her decision to detain him on insufficient evidence.

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:

…;

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

In the light of all the material in its possession the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. The Court considers that it was ordered and confirmed in accordance with domestic law and fell within the ambit of Article 5 § 1(c) of the Convention, as having been effected for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed an offence. As regards the alleged lack of reasonable suspicion, the Court is not convinced by the applicant’s arguments in this respect. Although the charges against him underwent certain modifications during the preliminary investigation, the Court considers that at least part of the initial charges, and those which led to the applicant’s conviction, were based on a reasonable suspicion of his having committed criminal offences punishable under the Bulgarian Criminal Code. The charges against the applicant were based on documents, testimonies and other evidence which indicated that he, inter alia , might have filled-in banking documents in breach of financial and banking regulations and breached his professional duties in order to transfer large sums of money out of Bulgaria from an unknown source with a view to obtaining an unlawful gain.

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).

Finally, 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 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 upon his arrest he was not brought promptly before a judge. 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” (see the Nikolova v. Bulgaria judgement of 25 March 1999, to be published in Reports of Judgements and Decisions (Reports) 1999-, § 50). 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] 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. 3222/96, ibid ).

In the instant case, the applicant was arrested on 12 March 1996, on the prosecution authorities’ order and on 17 September 1997 he was brought before a judge. Therefore, 17 September 1997 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 applicant introduced his first letter with the Commission on 7 July 1998.

It follows that the above complaint has 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.

3. The applicant further complains under Article 6 §§ 1, 2 and 3 that his right to fair criminal proceedings was violated.

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

The Court notes that the applicant’s case is pending before the Plovdiv Regional Court . I n these proceedings he will be able to raise all arguments about the alleged partiality of the Plovdiv District Court and the alleged unfairness of the proceedings. Moreover, it is open to the applicant, in case the second instance decision is unfavourable, to appeal to the Supreme Court of Cassation , which is also competent to examine the allegations now raised before the Court.

It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right under Article 6 to a fair trial by an impartial tribunal and that, therefore, this part of the application is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

4. As regards the applicant’s complaint under Article 5 § 3 in respect of the length of his detention on remand; the complaints under Articles 5 § 4 that the judicial review upon his applications for release was purely formal and that some of his applications were not examined speedily by the courts; the applicant’s complaint under Article 5 § 5 that he did not have an enforceable right to compensation for the alleged violations of Article 5 and the complaint under Article 6 § 1 concerning the length of the criminal proceedings against the applicant, the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the complaints under Article 5 § 3 in respect of the applicant’s allegations that his pre-trial detention was excessively lengthy; under Article 5 § 4 concerning the speediness and the scope of the judicial review of the lawfulness of his detention; under Article 5 § 5 in respect of the alleged lack of compensation for the alleged violations of Article 5 and under Article 6 § 1 concerning the alleged excessive length of the criminal proceedings against the applicant;

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.)