FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35220/97

by Ludmil BOICHINOV

against Bulgaria

The European Court of Human Rights ( Fourth Section) sitting on 20 April 1999 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 ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 October 1996 by Ludmil BOICHINOV against Bulgaria and registered on 10 March 1997 under file no. 35220/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 23 April and 28 May 1998 and the observations in reply submitted by the applicant on 29 July 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1972 and residing in Biala Slatina, the region of Vratsa.

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

A. Particular circumstances of the case

1. Background

On an unspecified date in 1993, prior to the events in the present case, criminal proceedings were opened against the applicant and three other persons on charges that they had robbed a Ms P. in her presence, taking away 75 fur coats and some other objects. The applicant was detained on remand between 21 October 1993 and 22 February 1994 when he was released on bail. As of 1998 the case was pending for trial, a hearing having been fixed for 2 October 1998.

On 22 April 1995 in the area of the village Gabare three persons were shot and killed in their car in what was seen as an internal war between local criminal groups. According to the indictment the applicant and a Mr G. were in a car which was chased by the victims. At some point the two cars stopped, and the applicant, who had bought an automatic gun three weeks before the events, went out and fired the gun to kill all the victims, one after another. At his trial the applicant stated that he was present during the killings but that it had been Mr G. who had shot the victims.

2. The preliminary investigation

The applicant did not return home after the above events. On 25 April 1995 he voluntarily appeared at the police in Sofia where he was arrested and transferred to Vratsa.

On 27 or 28 April 1995 an investigator (следовател) officially charged the applicant on three counts of murder and ordered his detention on remand. On 27 or 28 April 1995 this decision was confirmed by a prosecutor.

Between April and June 1995 the investigator in the applicant’s case heard more than 30 witnesses and 8 medical, ballistic and other experts. Some of the witnesses were examined upon the request of the applicant’s lawyer of 19 May 1995. The investigator also made site visits and conducted an experiment, reconstructing the events of 22 April 1995. The investigator heard the applicant on at least four occasions during this period of time. He also collected other documentary evidence.

On 22 June 1995 the investigator requested the competent prosecutor to authorise the continuation of the investigation for another 60 days. By decision of 7 July 1995 the Regional Prosecutor’s Office (окръжна прокуратура) granted the request.

On 10 August 1995 the investigator appointed a psychiatric expert to examine the applicant. An expert in physics and chemistry was appointed on 12 October 1995 to analyse traces of gunpowder.

The investigator examined the applicant again on 21 November 1995. The applicant requested the collection of additional evidence. On 22 November 1995 the investigator appointed an expert in graphology. On 24 November 1995 the Chief Public Prosecutor’s Office (главна прокуратура) authorised the continuation of the preliminary investigation. On 8 December 1995 the investigator dealt with the applicant’s requests in relation to the collection of evidence in his case.

On 13 December 1995 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 5 January 1996 the Prosecutor’s Office returned the case for further investigation with instructions to charge the applicant also with unlawful possession of arms.

On 22 January 1996 the investigator wrote a letter to the Regional Prosecutor’s Office in Vratsa explaining that the applicant insisted on the presence of his lawyer during the investigation and that the lawyer, who was from Sofia, had declined to come to Vratsa on several proposed dates. Finally the lawyer had agreed to come on 4 or 5 February 1996.

The additional preliminary investigation was concluded on 12 February 1996. On 22 February 1996 the Regional Prosecutor’s Office submitted an indictment to the Regional Court in Vratsa.

By decision of 10 April 1996 the Regional Court fixed a hearing for 28 May 1996. At the hearing on 28 May 1996 the applicant claimed that there had been breaches of procedure and requested that the case be referred for further preliminary investigation. The Court found that there had been procedural violations which necessitated the referral of the case back to the prosecutor. On 5 June 1996 the prosecutor returned the case to the investigator.

On 9 August 1996 the Prosecutor’s Office refused the applicant’s request for the replacement of the investigator.

On 16 August 1996 the investigator examined one witness. On 18 August 1996 the investigator allowed eight civil plaintiffs to consult the case-file.

On 7 October 1996 the applicant was examined by the investigator. On 14 October 1996 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 23 October 1996 a new indictment was submitted to the Vratsa Regional Court.

During the preliminary investigation stage of the proceedings the applicant, who was legally represented, submitted to the investigator and to the prosecution authorities numerous complaints and requests. He complained of the behaviour of the investigator, about the visit arrangements in prison, about the delays in the examination of his case, requested his release and raised other matters.

3. The trial

By decision of 15 November 1996 the Court fixed a hearing for 29, 30 and 31 January 1997. On 28 November 1996 the Court inquired with the competent administrative authorities about the address of a witness.

On 29 and 30 January 1997, at the hearing, the Court admitted for joint examination six civil claims submitted by relatives of the victims, heard the applicant and 27 witnesses. Some of the witnesses refused to answer certain questions. Counsel for the applicant requested the collection of additional evidence.

The hearing was adjourned until 10 March 1997 when the court heard 6 witnesses and 2 experts. The Court again adjourned the hearing because of the failure of certain witnesses to appear and also in view of the request supported by the applicant’s lawyer for the appointment ballistic experts. This was apparently related to the divergence in the testimonies given by the applicant and Mr G. The applicant claimed inter alia that Mr G. had shot one of the victims during the chase, at a moment when the cars had still been in motion, whereas Mr G. claimed that the applicant had shot all the victims from a static position.

The hearing resumed on 13 May 1997 when the Court heard the applicant, the experts and 5 witnesses. The Court adjourned the hearing as two witnesses had not appeared. A warrant for the arrest of one of them had been issued, but his whereabouts had remained unknown.

On 27 June 1997, acting in camera, the Court ordered the admission in evidence of several objects.

The hearing resumed on 9 September 1997. At that hearing Mr G. partially altered his testimony. The Court adjourned the hearing until 6 November 1997.

By letter of 23 September 1997 the applicant requested the examination of two additional witnesses. On 6 October 1997 he requested to be examined with the use of a “lie-detector”. This request was refused.

On 6 November 1997, at the resumed hearing, the Court heard a police officer who participated at the applicant’s questioning during the first days after his detention and a shepherd, who was an eye-witness of the events. The applicant also gave additional testimony. Two other witnesses did not appear, the efforts to locate one of them having been fruitless.

The Court decided that the questioning of one of the witnesses which had not appeared was essential and listed the case for a hearing on 4 March 1998. The Court also accepted the request of the prosecution for the questioning of an anonymous witness.

On 4 March 1998 the hearing was adjourned until 6 and 7 May 1998 as the prosecutor had fallen ill and also because he had been unable to secure the attendance of the anonymous witness requested by him.

In April 1998 Mr G, the witness who had been with the applicant during the shooting on 22 April 1995, was murdered. According to the applicant, in whose submission Mr G. was the person who had shot the three victims on 22 April 1995, Mr G. found his death when he visited another witness with the intention to threaten him. The Government have not commented.

On 6 May 1998 the Court heard one anonymous witness and another witness. The anonymous witness stated, inter alia , that he feared for his life and declined to name certain persons in his testimony. The applicant submits he has discovered the identity of the anonymous witness.

The other witness who testified on 6 May 1998 altered his testimony given at the preliminary investigation, explaining that his previous version of the facts had been dictated to him by Mr G. who had threatened him and beaten him on two occasions in 1995.

At the close of the hearing the applicant’s lawyer and the civil plaintiffs requested the examination of additional witnesses. The Court granted these requests and adjourned the hearing until 29 and 30 June 1998, when it was again adjourned. The parties have not substantiated whether the Court examined any evidence at the hearing on 29 and 30 June 1998.

The hearing resumed on 28 October 1998. On that date the trial re-commenced as one of the lay judges had passed away and no reserve lay judge had been appointed. On 28 and 29 October 1998 the new composition of the Vratsa Regional Court examined several witnesses and adjourned the hearing.

4. Decisions on the continuation of the applicant’s detention

Following the applicant’s detention on remand on 27 April 1995 and until the first indictment his detention was confirmed by the Regional Prosecutor’s Office and by the Chief Public Prosecutor’s Office by decisions dated 7 July 1995, 14 November 1995, 20 November 1995 and 5 January 1996. The decisions of 27 April 1995 and 14 November 1995 stated that there was a danger of absconding, obstructing justice and re-offending. The decision of 20 November 1995 stated that there were no grounds justifying release. The parties have not substantiated the reasoning of the remaining decisions.

On 10 April 1996 a judge at the Vratsa Regional Court confirmed the applicant’s detention. Following the referral of the case back to the prosecution authorities, the detention was confirmed by their decisions of 5 June 1996, 8 July 1996 and 6 October 1996. The decision of 5 June 1996 did not contain any reasoning. The decision of 8 July 1996 stated that the applicant’s request to be released for lack of sufficient proof against him was unfounded as his detention was in conformity with the Code of Criminal Procedure. The reasoning of the decisions of 10 April and 6 October 1996 has not been substantiated.

During the applicant’s trial his detention on remand was confirmed by the Vratsa Regional Court on 15 November 1996, 21 January 1997, 30 January 1997, 10 March 1997, 13 May 1997, and 9 September 1997. The decision of 21 January 1997 was in the form of a letter which informed the applicant that his detention was lawful as he was detained by decision of the Regional Prosecutor’s Office, which had been subject to appeal. The decision of 30 January 1997 stated that the applicant could not be released in view of the charges against him. The decision of 9 September 1997 stated that the new legislation referred to by the applicant concerned only time-limits on pre-trial detention and was therefore inapplicable. The Court further stated that in the case before it the accusation concerned a serious wilful crime and that therefore there were no grounds for release on bail. The reasoning of the remaining decisions confirming the applicant’s detention has not been substantiated.

Some of the above decisions were taken ex officio whereas others were in response to the applicant’s requests for release. During the preliminary-investigation stage of the proceedings he applied for release at least in October 1995, and in July, October and November 1996. Following the commencement of the trial in November 1996 the applicant requested his release in December 1996, in January, March, May, September and December 1997 and in October 1998. The parties have not substantiated the decisions taken on the latter two requests.

The minutes of the hearing of 6 May 1998 record the following words of the applicant’s lawyer:

“In this respect I would request that ... Mr P. ... be summoned as a witness. I would ask for his summoning through the district police. I would ask for leave to submit later the exact address of this witness. I make all these requests after consultation with my client. With a view to avoid any suspicion about manipulation on his part, he wishes to underline that he does not insist on [release] and for that reason asks that the witnesses be summoned [by the court].”

B. Relevant domestic law and practice

Provisions of the Code of Criminal Procedure (Наказателно процесуален кодекс), as in force at the relevant time:

Section 152 §§ 1 and 2, as in force until 4 June 1995, provided as follows:

"(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment.

(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ..."

Section 152 §§ 1 and 2, as in force after 4 June 1995, provide as follows:

"(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.

(2) In the cases referred to in paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.”

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

The relevant part of Section 152 §§ 3 and 5, as in force between 4 June 1995 and August 1997, provided as follows:

“(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person, or where [the accused is a recidivist] ...

...

(5) The detained person shall immediately be provided with the opportunity to file an appeal to the competent court against his [detention on remand]..."

In August 1997 the text of paragraph 3 of Section 152 was replaced by a provision limiting the length of pre-trial detention. These limits do not apply in respect of detention after the commencement of the trial.

COMPLAINT

The applicant complains under Article 5 § 3 of the Convention of the length of his detention on remand.

PROCEDURE

The application was introduced on 11 October 1996 before the European Commission of Human Rights and registered on 10 March 1997.

On 14 January 1998 the Commission decided to communicate to the respondent Government the applicant’s complaint under Article 5 § 3 of the Convention of the length of his detention on remand. It declared the remainder of the application inadmissible.

The Government’s written observations were submitted on 23 April and 28 May 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 29 July and 9 November 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant claims that there has been a violation of Article 5 § 3 of the Convention which, insofar as relevant, provides as follows:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

The Government submit that under Section 152 § 3 of the Code of Criminal Procedure the applicant’s detention on remand was obligatory as at the time of his arrest in April 1995 there were other criminal proceedings pending against him. In view of the persistent criminal activity of the applicant the public interest prevailed over his right to liberty. Also, there was a danger of absconding and concealing evidence.

The Government further state that the applicant’s detention was necessary to preserve the public order. The applicant was apparently implicated in an internal conflict between criminal groups and his detention served to prevent a further escalation of this conflict.

The Government also maintain that the proceedings did not involve undue delays. They state that 65 witnesses were examined by the investigator and 40 by the Regional Court, that 13 experts were appointed and many other steps were undertaken.

Moreover, the applicant sent tens of complaints to various institutions and appointed lawyers from Sofia, who had difficulties to come to Vratsa. Each of the applicant’s requests for release entailed a suspension of the investigation during the time when the case-file had to be transmitted to the respective organ and the time to decide on the request.

The Government further refer to the words of the applicant’s lawyer as recorded in the minutes of the hearing of 6 May 1998 before the Vratsa Regional Court. In the Government’s view these words indicated that the applicant did not wish to be released. Therefore his complaint is ill-founded.

Lastly, the Government state that Article 5 § 3 of the Convention does not guarantee an absolute right to bail. In the applicant’s case the fact that at the time of his arrest there were other criminal proceedings pending against him and that he continued his criminal activity were sufficient grounds justifying the refusal of the authorities to release him on bail.

The applicant replies that there is no danger of him absconding or concealing evidence, the Government not having substantiated any proof in this respect. The applicant states that he is married and has a child and that he is responsible for their well-being.

He further replies that the 1993 criminal proceedings against him were never invoked as grounds for his detention on remand. Furthermore, the fact that there are other criminal proceedings pending does not prove, in his submission, that he may abscond or commit crimes. In any event, the applicant maintains that the automatic imposition of detention in such cases is contrary to the Convention.

The applicant submits that during the preliminary investigation, which lasted for about 17 months only 70 days were taken up in various acts of investigation. It follows that nothing was done during the remaining 14 months and 20 days.

The applicant also submits that he cannot be held responsible for having submitted complaints in exercise of his procedural rights, and that numerous delays were imputable to the prosecution authorities and to the Regional Court.

The Court recalls that Article 5 § 3 of the Convention does not imply a maximum length of pre-trial detention. The reasonableness of an accused person’s continued detention must be assessed in each case according to its special features. It falls in the first place to the national judicial authorities to examine all the circumstances arguing for and against the existence of a genuine requirement of a public interest justifying continued detention. It is essentially on the basis of the reasons given in the domestic decisions and of the true facts stated by the applicant in his appeals that the Convention organs must examine the complaint under Article 5 par. 3 of the Convention (see the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, pp. 15-19, §§ 30 to 42; and the Contrada v. Italy judgment of  August 1998, § 54, to be published in Reports 1998-V).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were  relevant  and  sufficient  , the Court must also ascertain whether the competent national authorities displayed  special diligence  in the conduct of the proceedings (see the Muller v. France judgment of 17 March 1997, Reports 1997-II, p. 388,  35.

The Court notes at the outset that during the preliminary investigation stage of the proceedings against the applicant, between April 1995 and November 1996, he did not appeal to a court under section 152 § 5 of the Code of Criminal Procedure against the decisions of the investigator and of the prosecutor of 27 April 1995 to detain him on remand. During that period of time his requests for release were addressed only to the prosecution authorities which, indeed, were competent to order his release.

The Court need not decide whether or not in these particular circumstances the applicant may be considered as having exhausted all domestic remedies in respect of his pre-trial detention and whether or not a certain period of this detention should be deducted in the assessment of the "reasonable time" requirement under Article 5 § 3 of the Convention, as his complaint is in any event manifestly ill-founded.

The Court observes that as of 9 November 1998, the date of the latest information received from the parties, the applicant had been detained for approximately three years and seven months.

It is to be noted, firstly, that the charges against the applicant concern murder of three persons with an automatic gun. The violent circumstances of the alleged crime, the fact that the applicant did not return home after the events and that the alleged murder was committed after the applicant’s release on bail in proceedings where he had been charged with robbery were sufficient to support the authorities’ conclusion that there existed a real danger of his absconding and committing crimes. The applicant’s arrest and initial detention were therefore based on relevant and sufficient reasons (cf. the Van der Tang v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18,  55).

Noting the lengthy period of the applicant’s detention, the Court must further ascertain whether the above considerations applied with unaltered relevance throughout the period of time under consideration (cf. the I. A. v. France judgment of 23 September 1998, §§ 108 to 111, to be published in Reports 1998).

In this respect the Court observes that at the applicant’s trial an anonymous witness stated that he was afraid for his life, that another witness testified that he had been threatened by Mr G. to change his testimony, that Mr G. was assassinated in April 1998 in unexplained circumstances, and that the applicant stated that he had discovered the identity of the anonymous witness. On that background it must be recalled that the domestic court was confronted with two contradictory versions of the facts as maintained by the applicant and Mr G., the other person who had been present during the killings. Mr G., the main witness in the case, had maintained that the applicant had shot the victims, whereas the applicant had

asserted that Mr G had been the murderer.

In the light of the above facts the Court agrees with the Government that there existed the justified suspicion that the applicant was implicated in an internal conflict between criminal groups and that his release, even after the passage of time, could bring about a further escalation of this conflict. Therefore the danger of the applicant’s committing a crime, obstructing justice and absconding has persisted.

The Court notes further that the case apparently involves very grave evidential difficulties. Crucial witnesses kept altering their testimony and exchanged with the applicant accusations that they had been testifying under threats. Little physical evidence could be of any use in order to establish whether it had been the applicant or another person who had shot the victims. Finally, in April 1998 the main witness was murdered.

Turning to the conduct of the proceedings the Court attaches particular importance to the concrete facts in the present case which demonstrate the activity of the authorities involved. During the preliminary investigation at least 31 witnesses were examined and reports were submitted by at least 10 experts. The applicant was questioned on numerous occasions. The Regional Court held hearings in January, March, May, September and November 1997, May, June and October 1998. At these hearings the Regional Court heard at least 40 witnesses and 10 experts. On several occasions the court summoned witnesses repeatedly and appointed additional experts upon the parties’ requests and in view of the divergence in the testimonies. The Regional Court also heard repeatedly the applicant, his lawyers and the representatives of the civil plaintiffs. All this intensive activity was indispensable in view of the extreme difficulties which the Regional Court encountered in reconstructing the events and arriving at the truth.

The Court recalls that the right of an accused in detention to have his case examined with particular expedition must not hinder the efforts of the courts to carry out their tasks with proper care (see the W. v. Switzerland judgment cited above, p. 19 § 42). In the present case the length of the applicant’s detention is essentially attributable to the exceptional complexity of the case and the extreme evidential difficulties.

It is true that in the period under consideration the hearing before the Regional Court had to be adjourned when a prosecutor had fallen ill and following the death of a lay judge. However, there is nothing to show that the hearing of 4 March 1998 would not have been adjourned in any event. It must be noted that several adjournments were necessary as the applicant’s lawyer had requested the collection of additional evidence. Even if certain delays may be partly attributed to the authorities, they have not exceeded three to four months.

As to the conduct of the applicant, in view of its findings above, the Court need not embark on attempts to interpret his lawyer’s intention when he stated, on 6 May 1998, that his client did not insist to be released. The Court may leave open the question to what extent the applicant’s conduct has contributed for the delay in the proceedings.

In the light of the above considerations and assessing the material before it, the Court finds, therefore, that the remainder of the application is manifestly ill-founded within the meaning of Article 35 of the Convention and must be rejected.

For these reasons, the Court, by a majority,

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President