FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41171/98 by Zaprian Jordanov ZAPRIANOV against Bulgaria

The European Court of Human Rights ( Fourth Section ), sitting on 27 April 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges , [Note1]

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 February 1998 and registered on 12 May 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1948 and living in Plovdiv .

He is represented before the Court by Mr Michail Ekimdjiev , a lawyer practising in Plovdiv .

A. Particular circumstances of the case

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

1. Preliminary investigation

On 1 October 1993 the applicant started working as chief financial expert at the Municipal Privatisation Agency in Plovdiv , responsible for the privatisation of state-owned enterprises. It appears that in 1995 and 1996, the competent financial control authority commenced an audit in the course of which, by decisions no. 255 of 15 June 1996 and no. 82 of 2 April 1997, it was established that some public funds were misappropriated by the applicant. During its investigations, the financial control authority discovered illegal activities, about which the applicant was questioned several times.

On an unspecified date in 1996 criminal proceedings were opened against him and on 14 May 1996 he was arrested on suspicion of having misappropriated public funds and detained on remand.

It appears that the prosecution authorities examined 23 witnesses, 5 experts and numerous financial, commercial and other documents. During the preliminary investigation proceedings the investigator was replaced, but no further detail was provided in this respect. No other, more precise, information is available about the course of the investigation.

On 17 June 1996 the applicant requested the Regional Prosecutor ( Окръжна прокуратура) to release him, as he did not have any previous criminal record and had a permanent address and a family. He also claimed that he was ill and that there was no danger that he would commit further offences, or abscond. The applicant’s complaint was dismissed on 21 June 1996 by the Regional Public Prosecutor on the ground that he was charged with a serious continuing criminal offence. On 15 July 1996 the applicant appealed that decision to the Chief Public Prosecutor (Главна прокуратура), who on 2 August 1996 dismissed it on the ground that the offence represented a serious public threat. The decission also stated that there was no information demonstrating that the applicant was ill. On 20 December 1996 the applicant again submitted an appeal with the Chief Public Prosecutor against the decision of 21 June 1996. The follow-up of the proceedings is unknown.

On 8 February 1997 the applicant asked the Regional Investigation Office (Окръжна следствена служба) and the Regional Public Prosecutor to release him due to his health problems and requested a medical check-up [of the applicant]. It appears that on an unspecified date this application for release was dismisssed.

On an unspecified date the applicant again requested that his pre-trial detention be substituted by a more lenient mesure, as he was ill and therefore, he could not abscond. On 12 May 1997 the Regional Public Prosecutor dismissed the applicant’s request on the ground that the applicant was in good health and that the fact that his wife was ill and could not take care of their grand-daughter was not a valid reason to release him. The applicant’s subsequent appeal of 19 May 1997 was dismissed on 11 June 1997 by the Chief Public Prosecutor on the ground that the applicant could tamper with witnesses and evidence and commit further offences. On 23 June 1997 the applicant appealed to the Chief Public Prosecutor against the decision of 11 June 1997 . The applicant claimed that during the 6-months preliminary investigation conducted by the financial control, during which he was not detained, he had always reported regularly to that authority, thus showing that he had not any intention to suppress evidence or evade justice. On 16 July 1997 the applicant’s appeal was dismissed on the ground that his case was, prima facie , one for which the relevant law prescribed detention. The Chief Public Prosecutor also stated that the investigation had been completed and that the prosecution authorities should decide whether to indict the applicant.

From the applicant’s submissions it appears that after July 1997 no new evidence was collected against him and no other investigation activities were carried out.

2. The trial

The applicant, the director of the Privatisation Agency and a manager of a private company were indicted on 2 October 1997 by the Regional Prosecutor. The applicant was indicted for having been involved in fraudulent misappropriation of public funds in the course of privatisation of state-owned enterprises from 1 October 1993 to 1 April 1996. In the course of 1995, it appeared that the applicant drew money from the Privatisation Agency banks’ accounts for his personal needs. Further, the applicant made an agreement with the third co-accused to make assessments of the value of objects to be privatised. It appears that the applicant used to receive some amounts for each assessment performed by the third co ‑ accused. He also had received a large amount of money as subsistence expenses for a business trip and never gave back the remaining sum. The criminal activities were discovered during the financial audit.

The indictment was based on several witnesses’ testimonies, financial documents, a handwriting expert’s report, orders for bank transfers, etc. The Regional Public Prosecutor prolonged the applicant’s detention pending trial, but released the two other co-accused on bail.

On 21 November 1997 the applicant lodged an application for release with the Regional Court against his pre-trial detention, claiming that his health had considerably deteriorated and that he had to take care of his granddaughter. On 24 November 1997, at a public hearing, that court dismissed the application on the ground that the criminal offence with which he was charged was very serious and that he might tamper with evidence and witnesses.

On 5 and 6 February 1998 another hearing took place before the Regional Court, at which the applicant’s application against his detention was again dismissed on similar grounds.

On 10 April 1998 the Regional Court again held a hearing, which was adjourned as the court ordered the preparation of a financial-banking expertise. It again dismissed the applicant’s application for release on the grounds that he was charged was very serious crime and that he might tamper with evidence and witnesses. On 16 April 1998 the applicant’s lawyer lodged an appeal with the Appellate Court against the decision of 10 April 1998. On 12 May 1998 the applicant’s appeal was dismissed in camera for similar reasons.

On 26 May 1998 a hearing was held before the Regional Court which was adjourned, as it appears that the three experts who were to prepare the financial-banking expertise had not yet been appointed.

On 12 June 1998 the applicant complained against his detention, arguing that it was not reasonable to believe that he could forge documents to be examined by the experts and tamper with witnesses. He also invoked the fact that the he had already been detained for two years and some months. His appeal was dismissed on 17 June 1998 at the public hearing before the Regional Court on the ground that he might forge some important financial documents and obstruct the fact-finding, taking into consideration that there were more witnesses and expert-witnesses to be heard. That court adjourned the hearing, as the other co ‑ accused’s lawyers had not appeared. The court also decided to summon another witness. On 24 July 1998 the Appellate Court, sitting in camera , dismissed the applicant’s appeal and held that the Regional Court was trying to conduct a prompt trial, but the investigation activities and examination of evidence were too complex.

On 9 September 1998 the hearing before the Regional Court was again adjourned, as it appears that one of the appointed experts was to be replaced. The court refused to release the applicant. On 15 September 1998 the Regional Court, sitting in camera , upheld its decision of 9 September on the ground that the applicant was charged with a serious offence.

On 10 September 1998 the applicant again submitted an appeal against his detention to the Appellate Court. On 19 October 1998 that court, sitting in camera , dismissed the applicant’s appeal holding that in view of the seriousness of the case and the applicant’s behaviour during the preliminary investigation, the detention pending trial could not be considered unreasonably lengthy.

The hearing scheduled for 14 December 1998 before the Regional Court was adjourned for an unspecified date as some important issues were yet to be tackled by the experts. In particular, no annual statement, declaration of funds or by laws of the Privatisation Agency could be found. Other vital documents from the Privatisation Agency and from a bank were missing and some important documents could only be obtained as copies. The applicant’s arguments that he did not have the possibility of tampering with witnesses or evidence, as there were no new witnesses to be heard and the documents to be examined were kept safe, were rejected by the court. The latter held that the applicant was charged with a serious criminal offence for which pre-trial detention was mandatory by law and that this preventive measure could not be substituted by a more lenient one as there was a danger of the applicant’s obstructing the course of justice since some expert witnesses were yet to be heard.

On 21 December 1998 the applicant filed an appeal against the above decision with the Appellate Court. On 26 January 1999 that court, sitting in camera , dismissed the applicant’s appeal on the basis that the applicant was charged with having committed a serious crime. It held that until the final judgement was rendered it was presumed that the prosecution authorities had the necessary evidence to indict a defendant and on that basis to impose preventive measures. The court’s task when examining an application against pre-trial detention was only to control whether it could be substituted by a more lenient measure and in this it was bound by the terms of indictment and the level of public danger had to be taken into consideration.

The next hearing before the Regional Court took place on 9 February 1999, at which a completed expert’s report was examined. The hearing was again adjourned due to the fact that the second lawyer of the applicant was not present. However, the applicant consented to continue the hearing without that lawyer. The court decided to write a letter to him, pointing out that his absence was the sole reason why the court had to adjourn the hearing. The applicant again requested to be released, considering that the detention exceeded the reasonable time and that it was unreasonable to believe that he could commit further offences or evade justice. The court again dismissed the applicant’s request.

On 10 February 1999 the applicant filed an appeal with the Appellate Court. On 19 March 1999 that court dismissed the applicant’s appeal on the ground that the fact that the expert’s report was completed did not constitute a new fact in favour of the applicant’s release. It further held that there was no prima facie evidence that the defendant would not obstruct the course of justice or abscond or tamper with evidence, if pre-trial detention was substituted by a lenient measure and that the delay in the proceedings was caused by the applicant’s lawyer who had failed to appear in court and had not properly handled his defence.

The next hearing was scheduled for 12 April and then adjourned to 12 May 1999, when the pleadings of the parties were heard. Meanwhile, on 28 April 1999, the applicant’s lawyer again requested his client’s release on bail from the Regional Court.

On 17 May 1999 the applicant was found guilty and sentenced to seven years’ imprisonment. On 14 December 1999 the Plovdiv Appellate Court mitigated the applicant’s sentence to five years’ imprisonment. On 12 January 2000 the applicant filed a petition for review with the Supreme Court of Cassation .

On 22 December 1999 the applicant’s detention pending appeal was substituted by another preventive measure and he was released.

B. Relevant domestic law

1. Section 203 § 1 of the Criminal Code provides as follows:

“Embezzlement of large amounts of public founds shall be considered a serious crime and shall be punished with ten to thirty years of imprisonment.”

2. Legal criteria for detention on remand

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

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

(2) In cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger that the accused will abscond, tamper with witnesses or evidence, or commit further offences.”

Paragraph 3 of S ection 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.

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 on remand. The only exception is provided for under 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 absconding or committing further offence. Such a danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or aged, or who 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 analysis of the particular facts to justify findings that there existed a danger of absconding or committing further offence ( 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).

An amendment to Section 152 was introduced in August 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.

3. Appeals against detention prior to the commencement of the trial

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

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

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

(3) The court shall deliver a decision which is not subject to appeal . The court shall either quash the detention order and impose another measure of control [of the accused] or dismiss the appeal.

(4) In case there has been a change of circumstances the detained person may again appeal to the court against the [detention on remand].”

4. Appeals against detention during the trial

According to Section 304 § 1 of the Code of Criminal Procedure 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 in a seven days' 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.

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

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subject to inhuman and degrading treatment. In particular, the detention facilities were not hygienic and up to European standards.

The applicant also complains under Article 5 § 1 of the Convention that he was detained unlawfully.

The applicant complains under Article 5 § 3 of the Convention that he was not brought before a judge, or other judicial authority who could pronounce on the lawfulness of his arrest and that his detention was excessively lengthy.

He also complains under Article 5 § 4 of the Convention that the courts did not examine speedily his appeals concerning the lawfulness of his detention and that the scope of examination was limited in the following sets of proceedings: the proceedings instituted on 28 April and on 14 December 1999 with the Regional Court, and on 21 December 1998 and on 26 January, 10 February and 19 March 1999 with the Appellate Court. He also complains that the Regional Court, on 15 September 1998, and the Appellate Court, on all occasions, failed to hold open hearings, which affected the adversarial character of the proceedings.

The applicant further complains under Article 5 § 5 of the Convention that “he has not been able to exercise his right to compensation, guaranteed by legal procedure, for the damage inflicted upon him during his unlawful deprivation of liberty”.

Finally, the applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively lengthy.

THE LAW

1. The applicant complains that he was subject to inhuman and degrading treatment. He relies on Article 3 of the Convention which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that the applicant did not complain to the competent domestic authorities as he could have under the applicable law. He has not claimed that there was any obstacle for him to submit complaints under this heading. Therefore, he has failed to exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

It follows that this complaint is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with 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:

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

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

...

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

…”

In the light of all the material in its possession, the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1. It considers that the detention was ordered and confirmed in accordance with domestic law and 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 an offence. As regards the alleged lack of reasonable suspicion, the Court is not convinced by the applicant’s arguments in this respect. The Court considers that the initial charges, 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 might have drawn large sums from the company account for his personal needs, thereby committing an offence. The Court finds nothing 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 under Article 5 § 5 of the Convention that “he has not been able to exercise his right to compensation, guaranteed by legal procedure, for the damage inflicted upon him during his unlawful deprivation of liberty”.

The Court observes that the applicant has only invoked Article 5 § 5 in respect of his complaint under Article 5 § 1 that his detention was unlawful. However, the Court just found that this complaint was manifestly ill-founded. It follows that Article 5 § 5 is not applicable.

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.

4. The applicant also complains, under Article 5 § 3 of the Convention, that he was not brought promptly before a judge or other officer authorised by law to exercise judicial power and that his detention was excessively lengthy; under Article 5 § 4, that the courts did not examine speedily and in-depth his applications for release and failed to hold open hearings on several occasions; and, under Article 6 § 1, that the criminal proceedings against him were excessively lengthy.

In respect of these complaints the Court considers that it cannot, on the basis of the 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 thereof to the respondent Government .

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints under Article 5 § 3 that he was not brought promptly before a judge or other office authorised by law to exercise judicial power and that his pre-trial detention was excessively lengthy; under Article 5 § 4 concerning the speediness, the procedure and the scope of the judicial review of his detention and; under Article 6 § 1 concerning the alleged excessive length of the criminal proceedings against the applicant;

DECLARES INADMISSIBLE the remainder of the applications.

Vincent Berger Matti Pellonpää

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.)