FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37104/97

by Nikolay KITOV

against Bulgaria

The European Court of Human Rights ( Fourth Section) sitting on 9 March 1999 as a Chamber composed of

Mr M. Pellonpää, President ,

Mr J.A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr V. Butkevych,

Mr J. Hedigan,

Mrs S. Botoucharova, Judges ,

with Mr E. Fribergh, 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 22 January 1997 by Nikolay KITOV  against Bulgaria and registered on 29 July 1997 under file no. 37104/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1956 and living in Samokov. Between 1991 and 1994 he was the mayor of Samokov.

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

A. Particular circumstances of the case

The 1993 criminal proceedings against the applicant

On 27 May 1993 the District Prosecutor’s Office ( Районна прокуратура ) in Samokov opened criminal proceedings against the applicant. It was alleged that the applicant in his capacity as mayor of Samokov had bestowed unlawfully benefits to individuals by granting tenancy orders and allowing construction works which had caused damage to the environment (contrary to section 282 §§ 1 and 2 of the Penal Code ( Наказателен кодекс ), that he had made a false certification in an official document (section 311 § 1 of the Penal Code), and that he had used offensive language in respect of several persons (sections 146 and 148 § 1(3)(4)).

On 16 June 1993 the case was assigned to an investigator. On 27 July 1993 he examined one witness. He also heard the applicant on an unspecified date. On 11 August 1993 the investigator concluded his work on the case and drew up a report proposing the termination of the proceedings, as the applicant’s acts did not constitute crimes.

On 27 September 1993 the District Prosecutor’s Office referred the case back for further investigation. On an unspecified date the case was assigned to another investigator.

Between October 1993 and March 1994 the investigator examined witnesses, appointed technical experts and collected other evidence. On 24 March 1994 she concluded her work on the case with a proposal for a temporary suspension of the proceedings as an important witness could not be found and questioned. On 4 April 1994 the case was again referred back for further investigation by decision of the District Prosecutor’s Office.

On 6 September 1994 the investigator reformulated the charges, which had been indicated in the prosecutor’s decision of 27 May 1993 and, in addition, charged the applicant under sections 172 §§ 1 and 2 and 282 of the Penal Code in respect of allegedly unlawful payments to dismissed municipal employees and his refusal to comply with a judicial order reinstating an employee.

On 31 October 1994 the District Prosecutor’s Office terminated the proceedings in so far as they concerned the charges about payments to dismissed employees and in respect of some of the incidents where the applicant had allegedly used offensive language. On the same date the prosecutor drew up an indictment in respect of the alleged crimes under sections 282 §§ 1, 2 and 3 and 311 § 1 of the Penal Code and also as regards the applicant’s alleged failure to comply with a judicial order (section 172 §§ 1 and 2 of the Penal Code) and the remaining incidents where the applicant allegedly employed offensive language (sections 146 and 148 § 1(3)(4)). The indictment was submitted to the Samokov District Court ( Районен съд ).

Between 17 January 1995 and 15 May 1996 the District Court held several hearings. The court heard witnesses and experts and admitted documentary evidence.

By judgment of 17 May 1996 the applicant was convicted on some of the charges and was acquitted for the remainder. He was sentenced to one year and three months’ imprisonment, suspended.

On 29 May 1996 the applicant appealed to the Sofia Regional Court ( Окръжен съд ). The prosecutor also appealed and requested that the judgement of the District Court be quashed and the case referred back to the investigation authorities. The Regional Court held a hearing on 8 July 1996.

By judgement of 23 July 1996 the Regional Court confirmed the applicant’s conviction under section 311 § 1 and his acquittal under section 172 §§ 1 and 2 of the Penal Code, quashed the remainder of the District Court’s judgement and referred the latter part of the case back to the investigation authorities. The investigation of the alleged crimes under sections 146 and 148 § 1(3)(4) and section 282 §§ 1 and 2 of the Penal Code thus continued.

In respect of the applicant’s conviction for false certification in an official document under section 311 § 1 of the Penal Code the proceedings ended on 28 February 1997 when the Supreme Court of Cassation ( Върховен касационен съд ) dismissed his petition for review (cassation).

It appears that no procedural steps were undertaken between July 1996 and August 1997 in the continued investigation against the applicant.

By letters of 8 August, 27 August, 23 September and 29 September 1997 the applicant inquired with the District Prosecutor’s Office in Samokov about the course of the proceedings.

On 31 October 1997 an investigator reformulated the charges against the applicant. On 7 November 1997 the applicant was informed thereof and was questioned. The applicant had five meetings with the investigator until 25 November 1997.             

By letters of 26 February and 21 May 1998 the applicant protested against the delays in the proceedings. He was not informed of any developments in his case between 25 November 1997 and 6 August 1998 when he was summoned and questioned.

By letters of 4 September, 8 September and 5 October 1998 the applicant protested against the delays in the proceedings. As of January 1999 he had not been informed of any new developments.

Other criminal proceedings against the applicant

In 1995 criminal proceedings were opened against the applicant on suspicion that he had contravened the Penal Code by ordering the restitution of nationalised property to a private person. In July 1995 the applicant was questioned by an investigator. In November 1995 the investigator concluded his work on the case and proposed to the competent prosecutor to submit an indictment in court. In August 1997 the prosecutor referred the case back for further investigation. According to the applicant since then no procedural steps have been undertaken.

On 5 May 1998 an audit in the municipality of Samokov revealed an unaccounted 8,500,000 levs spent in 1993. On an unspecified date in 1998 criminal proceedings were opened against the applicant on charges of misappropriation of funds. These proceedings are pending at the preliminary investigation stage.

The applicant’s suspension and removal from the post of mayor of Samokov

On 18 January 1994 the Regional Prosecutor’s Office ( Окръжна прокуратура ) in Sofia, acting under section 154 § 1 of the Code of Criminal Procedure ( Наказателно процесуален кодекс ), ordered the applicant’s suspension from his position of mayor of Samokov as there was a danger that the applicant’s continued exercise of his official functions could be an obstacle to the investigation in the criminal proceedings opened on 27 May 1993 against him. Upon the applicant’s appeal this decision was confirmed on 7 February 1994 by the Chief Public Prosecutor’s Office ( Главна прокуратура ).

On 18 March 1994 a prosecutor ordered that the door of the applicant’s office, which had been left locked by him, be opened by force.

On an unspecified date in 1994 the applicant submitted a request to the Regional Prosecutor’s Office insisting on the annulment of the decisions of 18 January and 7 February 1994. He argued , inter alia , that the criminal proceedings against him were unreasonably lengthy. On 26 July 1994 the Regional Prosecutor’s Office dismissed the applicant’s request stating, inter alia , that the length of the criminal proceedings was irrelevant to the question whether the grounds justifying the suspension of his official functions as mayor persisted.

On 19 October 1994 the municipal council ( общински съвет ) removed the applicant from the post of mayor of Samokov. In November 1994 the applicant and the regional governor ( областен управител ) appealed against this decision to the Sofia Regional Court. The appeals were dismissed by judgement of 4 January 1995, which was confirmed by the Supreme Court on 12 December 1995.

In October 1995 there were elections for mayor of Samokov. The applicant has not confirmed that he was a candidate.

B. Relevant domestic law

Provisions of the Penal Code

According to Section 282 §§ 1 and 2, acting in an official capacity in excess of competence in order to obtain a benefit or cause harm, where the acts in question are capable of bringing about damage, carries a term of one to eight years’ imprisonment.

Section 311 § 1 provides for a punishment of up to five years’ imprisonment for a person convicted of having made a false certification in a document issued in the exercise of this person’s official functions, if this is done with the intention to make use of the document.

Sections 146 and 148 § 1(3)(4) taken together provide for a punishment of up to two years’ imprisonment or a fine for a person convicted of having used offensive language when acting in an official capacity in respect of another person acting in an official capacity.

Under section 172 §§ 1 and 2 a person who, acting in an official capacity, knowingly fails to abide by a judicial order for the reinstatement of an unlawfully dismissed employee shall be punished by up to three years’ imprisonment.

Section 154 of the Code of Criminal Procedure

This provision, insofar as relevant, reads as follows:

“(1)...the Regional Prosecutor can order the suspension of the accused person’s functions where the [alleged] crime has been committed in relation with his or her work and there are sufficient reasons to believe that the accused person’s position may be an obstacle to the objective and full clarification of the circumstances in the case.

(2) The suspension shall be terminated when this measure becomes no longer necessary”.

Law on the Local Self-Government and the Local Administration

Section 38 § 1 provides that the “mayor shall be the organ of the executive power in the municipality.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of the length of the criminal proceedings against him.

He also complains under paragraphs 1 and 3 of the same provision that during the first year of the investigation, which commenced in 1993 he was not informed of the grounds for the accusations, and was not allowed to participate in the interrogation of witnesses and to request the questioning of other witnesses. As a result he was unable to defend himself during the first year of the investigation.

The applicant also complains that the criminal proceedings against him were intended to stigmatise him in the eyes of his electorate. Also, his functions as mayor were suspended by a prosecutor for an unreasonably long period of time. The prosecution authorities in fact found him guilty in advance. He was then unlawfully ousted by decision of the municipal council. The applicant invokes Articles 3, 4 and 6 § 2 of the Convention and Article 3 of Protocol No. 1.

The applicant also claims that 23 employees of the mayor’s office in Samokov were dismissed unlawfully following his suspension and that the municipal elections in October 1995 were manipulated.

THE LAW

The applicant’s complaint of the length of the criminal proceedings against him

The applicant complains under Article 6 § 1 of the Convention of the length of three sets of criminal proceedings, which commenced in 1993, 1995 and 1998 respectively.

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 applicant complains under Article 6 §§ 1 and 3 of the Convention that there have been violations of his defence rights in the criminal proceedings.

As regards the proceedings, which are currently pending the Court finds that a complaint under Article 6 of the Convention about alleged unfairness of criminal proceedings is premature when these proceedings are still pending. The applicant cannot claim at this stage to be a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a fair trial in the determination of a criminal charge (cf. no. 31195/96, Dec. 27.2.1997, Decisions and Reports (DR) 88, p. 169).

In respect of that part of the proceedings, which ended with the judgement of the Supreme Court of Cassation of 28 February 1997, in the light of all the material in its possession and insofar as the applicant’s complaints of alleged breaches of his defence rights have been substantiated, the Court finds that they do not disclose any appearance of a violation of the Convention.

This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

b) The applicant complains that the suspension of his functions of mayor, ordered by a prosecutor, and his subsequent removal from this post by decision of the municipal council were in breach of his Convention rights. He invokes Articles 3, 4 and 6 § 2 of the Convention and Article 3 of Protocol No. 1.

The Court is not required to decide whether the complaints related to the applicant’s suspension and removal from his post fall to be examined under the Convention and if so, whether there has been a violation thereof, as they have been submitted on 22 January 1997, after the expiry of the six months’ time-limit under Article 35 § 1 (former Article 26) of the Convention. The final decision in respect of the applicant’s temporary suspension under section 154 § 1 of the Penal Code was that of the Chief Public Prosecutor’s Office of 26 July 1994 and this suspension was brought to an end on 19 October 1994, when the municipal council decided to remove the applicant from the post of mayor of Samokov. As regards this removal the final decision within the meaning of Article 35 § 1 of the Convention was the Supreme Court’s judgement of 12 December 1995.

These complaints must therefore be rejected under Article 35 § 4 of the Convention.

c) The applicant complains that 23 employees of the mayor’s office were dismissed and that the municipal elections in 1995 in Samokov were unfair.

The Court recalls that the Convention does not provide for an actio popularis , but requires, when the right to individual petition under Article 34 is being exercised, that an applicant should be able to claim to be actually affected by the measure complained of and thus to be the victim of a violation of the Convention (see, among other authorities, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. § 30; no. 29785/96, Dec. 4.9.1996, DR 88, p. 163).

In the present case the applicant has not been empowered to represent the individuals affected by the events complained of and cannot himself claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged violations. These complaints must therefore be rejected as being manifestly ill founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaint of the length of the criminal proceedings against him.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Matti Pellonpää Registrar President