FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37355/97

by S. K. and H. K.

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 9 April 1997 by S. K. and H. K.  against Bulgaria and registered on 12 August 1997 under file no. 37355/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicants are spouses born in 1946 and 1947 respectively. They are Bulgarian nationals and live in Vratsa .

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

A. Particular circumstances of the case

The 1990 criminal proceedings against the applicants

In 1990 the applicants registered a private company. They offered services such as travel arrangements and obtaining entry visas for foreign countries. The second applicant. Mrs H. K., was the company’s manager.

On 20 December 1990 the first applicant, Mr S. K., was arrested by two police officers who conducted a search at the premises of the applicants’ private company. Mr S. K. submits that the police officers broke the door and the window unnecessarily, handcuffed him and photographed him. It appears that he used offensive language against the police officers and stated that “the times when the communist police could drown political opponents in the Danube [were] over”. He was released after having spent several hours at the local police station.

In the days following these events criminal proceedings were instituted against the second applicant on suspicion that she had contravened section 225 § 1 of the Criminal Code ( Наказателен кодекс ) by having charged unlawfully high prices for the company’s services . Apparently in the framework of the same criminal proceedings the first applicant was charged under sections 148 § 1(3) and 325 §§ 1 and 2 of the Criminal Code in respect of his behaviour and use of offensive language during the search on 20 December 1990.

On an unspecified date in 1991 the competent prosecutor submitted an indictment to the Vratsa District Court ( Районен съд ) against the applicants. The District Court held several hearings at least one of which was in 1994.

By judgment of 9 November 1994 the District Court convicted the applicants on the charges brought against each of them. The first applicant was sentenced to six months’ imprisonment, suspended, and to public reprimand to be enforced by announcement of the operative part of the judgment on the local radio (section 52 of the Criminal Code). The second applicant was sentenced to pay a fine of 1000 levs (about 85 FF at the relevant time).

On 23 January 1995 upon the applicants’ appeal the Vratsa Regional Court ( Окръжен съд ) quashed the lower court’s judgment and referred the case back to the prosecution authorities for further investigation.

On 20 March 1996 the District Prosecutor’s Office ( Районна прокуратура ) in Vratsa terminated the proceedings insofar as they concerned the second applicant. The decision stated that, there having been no prices fixed by law for the type of services offered by the applicants’ private company, the second applicant’s acts could not constitute crimes under the Criminal Code. The criminal proceedings against the first applicant continued.

On an unspecified date in 1996 the competent prosecutor submitted a new indictment against Mr S. K. The case was heard by the Vratsa District Court.

By judgment of 7 April 1997 the first applicant was convicted under sections 325 § 1 and 148 § 1(3) of the Criminal Code in respect of the incident of 20 December 1990 and was acquitted for the charges under section 325 § 2 of the Code. He was sentenced to four months’ imprisonment, suspended, to a fine of 500 levs (about 2 FF at the relevant time) and to public reprimand to be enforced by announcement of the operative part of the judgment on the local radio (section 52 of the Criminal Code).

Upon Mr S. K.’s appeal this judgment was confirmed on 20 June 1997 by the Vratsa Regional Court .

The first applicant then submitted a petition for review (cassation) to the Supreme Court of Cassation ( Върховен касационен съд ). On an unspecified date in 1998 the Supreme Court of Cassation delivered its judgment. . The court confirmed the conviction of Mr S. K. under section 148 § 1(3) of the Criminal Code and the imposed fine and public reprimand. The court further acquitted him in respect of the charges under section 325 § 1 of the Criminal Code and quashed the remainder of the sentence.

In September 1998 the applicant unsuccessfully attempted to obtain a revision of this judgment before a five-member chamber of the Supreme Court of Cassation. He received a reply from the court which stated that the law did not provide for such a possibility.

Other criminal proceedings against the first applicant

On an unspecified date in 1994 the District Prosecutor’s Office in Vratsa opened provisional file 671/94 in respect of allegations that in the end of 1993 and the beginning of 1994 the first applicant had repeatedly threatened a person with murder (section 144 § 3 of the Criminal Code). It appears that the first applicant was summoned in this respect and that he made written depositions explaining his version of the facts. On 10 May 1994 a graphology expert appointed by the prosecutor concluded that an anonymous note containing threats against the life of a Mr G., a competitor to the applicants’ business, had been written by the first applicant. On 22 June 1994 the prosecutor ordered the institution of criminal proceedings against the first applicant on charges under section 144 § 3 of the Criminal Code. According to the first applicant he was not informed thereof until an unspecified date in 1996. On 3 December 1996 the District Prosecutor’s Office in Vratsa drew up an indictment. The case was referred to the District Court on an unspecified date in 1997. The court listed the case for a hearing on 13 March 1998. The applicants have not stated further details.

In 1995 and 1996, under provisional files 2255/95, 3370/95 and 1962/96, the District Prosecutor’s Office in Vratsa commenced an inquiry with the purpose to establish whether it was necessary to institute criminal proceedings against the applicants in respect of allegations that their private company performed services without a license and did not issue invoices to customers. As of 1998 the inquiry was still pending.

In August 1996 the District Prosecutor’s Office in Vratsa opened criminal proceedings against the first applicant on charges that he had contravened section 148 of the Criminal Code by having published in a local newspaper statements to the effect that certain municipal officials were corrupt and had committed crimes. The applicants have not submitted further information.

Other events

On an unspecified date in 1996 the applicants applied to the competent Building Planing Committee ( архитектурно градоустройствена комисия ) requesting permission for the reconstruction of their company’s premises into a photographic studio. As no response was received, they appealed to the Vratsa District Court against the tacit refusal. The District Court transmitted the appeal to the Committee with a request for certain documents. As no further steps were undertaken the applicants submitted a petition for review(cassation) to the Supreme Administrative Court ( Върховен административен съд ). On 18 June 1997 the court found that the petition had no object as it was not directed against a particular judicial decision. The court, therefore, returned the case-file to the District Court with instructions to commence the examination of the case before it. The applicant have not submitted further details.

In 1996 and 1997 the applicants instituted several sets of civil proceedings in the courts of Vratsa and Vidin claiming damages for allegedly unlawful acts and decisions of various State institutions. They also submitted to the prosecution authorities numerous requests for the opening of criminal proceedings against persons who had allegedly acted unlawfully and committed crimes. The applicants have not stated more details.

B. Relevant domestic law

Section 52 of the Criminal Code provides that public reprimand ( обществено порицание) is one of the punishments which can be imposed in a sentence after conviction. Public reprimand consists in the public announcement of the sentence at the sentenced person’s workplace, through the media or by other means as indicated in the judgment of the court.

Under section 144 § 3 of the Code a person who has made threats against the life of another person, provided that these threats were capable of generating well-founded fear, shall be punished by up to three years’ imprisonment.

Section 148 § 1(3) of the Criminal Code, as in force at the relevant time, provided for up to two years’ imprisonment or a fine between 100 and 500 levs for a person who had used offensive language against an official acting in an official capacity, in the latter person’s presence.

Section 325 § 1 of the Code provides that a person who disturbs the public order through indecent or other similar acts shall be punished for “hooliganism” by up to two years’ imprisonment or compulsory labour, as well as by public reprimand. According to section 325 § 2 the punishment shall be up to five years’ imprisonment if the “hooliganism” involved resistance to orders of State officers or was of exceptional gravity.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention about the length of the criminal proceedings against them. They state that they have been under constant persecution since 1990 and that their business was affected adversely.

The applicants further complain that the courts were partial and decided wrongly. Thus, they misinterpreted the words of the first applicant that the time of political murders was over. This was a general comment and was not meant as an offence to police officers. Also, the graphology expert’s opinion in the 1994 criminal proceedings was wrong. The applicants invoke Article 6 §§ 1 and 3 of the Convention.

The applicants also complain about the allegedly unlawful search in their company’s office on 20 December 1990, the first applicant’s arrest on the same date, and the attitude of the authorities in general. The applicants claim that they have been the victims of political repression, all decisions and acts of the prosecution authorities and the courts in all proceedings having been part of a plot against them. The refusal of the courts to examine their appeal against the inactivity of the local Building Planing Committee was also politically motivated. The applicants invoke Articles 7, 8, 9 and 10 of the Convention.

THE LAW

The applicants’ complaints of the length of the criminal proceedings against them

The applicants complain under Article 6 § 1 of the Convention of the length of several sets of criminal proceedings and preliminary inquiries against them, which commenced in 1990, 1994, and 1995 or 1996.

As regards the complaint of the second applicant of the length of the proceedings against her, which were terminated on 20 March 1996, the Court finds that this complaint has been introduced after the expiry of the six-months’ time limit under Article 35 § 1 of the Convention. This part of the application, therefore, must be rejected under paragraph 4 of Article 35.

In respect of the various criminal proceedings and preliminary inquiries against the first applicant the Court considers that it cannot, on the basis of the file, determine the admissibility of the above complaint 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 .

Other complaints

a) The applicants complain under Article 6 §§ 1 and 3 of the Convention that in all proceedings in which they were involved the courts were partial and decided wrongly.

The Court finds that this complaint, insofar as it concerns proceedings which are currently pending, is premature. 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 (cf. no. 31195/96, Dec. 27.2.1997, Decisions and Reports (DR) 88, p. 169).

As regards the proceedings against the second applicant which ended on 20 March 1996 the Court finds that her complaint has been introduced after the expiry of the six months’ time-limit under Article 35 § 1 of the Convention.

In respect of the proceedings against the first applicant which ended with the judgment of the Supreme Court of Cassation of 1998, in the light of all the material in its possession and insofar as the applicants’ complaints have been substantiated, the Court finds that they do not disclose any appearance of a violation of the Convention. The Court recalls in particular that its task when examining a complaint about fairness under Article 6 of the Convention is not to adjudicate on the dispute which was the subject matter of the domestic proceedings, but to assess whether the proceedings were fair within the meaning of that provision (cf. the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2928, § 53).

This part of the application, therefore, must be rejected under Article 35 §§ 3 and 4 of the Convention.

b) The Court further recalls that the Convention entered into force in respect of Bulgaria on 7 September 1992 and that, in accordance with the generally recognised principles of international law, it is only competent to examine complaints against violations of the Convention by virtue of acts, facts or decisions that have occurred after that date. The Court finds, therefore, that the applicants’ complaints concerning events prior to 7 September 1992 fall outside its competence ratione temporis and are therefore incompatible with the provisions of the Convention within the meaning of Article 35 § 3.

c) The applicants also invoke Articles 7, 8, 9 and 10 of the Convention complaining that in the various proceedings where they were involved the prosecution authorities and the courts acted against them with political motives. In the applicants’ submission this was the reason, in particular, for the obstructions to the examination of their appeal against the inactivity of the local Building Planing Committee.

The Court fails to see any substance in these complaints. Insofar as the applicants may be understood as raising complaints under Article 6 § 1 of the Convention about length of proceedings and access to a court, in respect of their appeal on building planing matters and of several sets of civil claims submitted in 1996 and 1997, the Court finds that the complaints are unsubstantiated and do not disclose any appearance of a violation of the Convention.

The remainder of the application must therefore be rejected under Article 35 § 3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the first applicant’s complaint under Article 6 § 1 of the Convention about the length of the criminal proceedings against him;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President