Communicated on 1 October 2015

FOURTH SECTION

Application no. 9662/13 Tsonyo Ivanov TSONEV against Bulgaria lodged on 17 January 2013

STATEMENT OF FACTS

1. The applicant, Mr Tsonyo Ivanov Tsonev , is a Bulgarian national who was born in 1977 and is currently detained in Lovech Prison. He is not legally represented.

A. The circumstances of the case

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

3 . On 9 June 2012 the Gabrovo police arrested the applicant , who has many times been convicted of dealing with narcotic drugs. Then they searched his flat, seizing a number of items. One of those was a plastic bag containing about two hundred and five grams of white powder that the police believed, based on a field test, to contain methamphetamine , a narcotic drug . Later that day the applicant was charged with possessing a narcotic drug with the intent to distribute it.

4 . On 12 June 2012 the applicant was brought before Gabrovo Regional Court, which decided to place him in pre-trial detention. The same day the police investigator in charge of his case ordered a physicochemical expert report on the content of the white powder seized from his flat. An appeal by the applicant against the decision to place him in pre-trial detention was dismissed by the Veliko Tarnovo Court of Appeal on 21 June 2012.

5 . On 27 July 2012 the applicant requested release. The Gabrovo Regional Court rejected the request on 2 August 2012, and, under Article 65 § 6 of the Code of Criminal Procedure 2005 (see paragraph 16 below), barred the applicant from making a fresh request for release for a period of two months, unless the request was on health grounds. The applicant ’ s appeal against this decision was dismissed by the Veliko Tarnovo Court of Appeal on 10 August 2012.

6 . The applicant made a second request for release on 17 October 2012. It appears that it was rejected as well.

7 . On 12 December 2012 the applicant requested release for a third time , arguing, inter alia , that the suspicion against him was not reasonable because the powder seized from his flat did not contain methamphetamine. On 20 December 2012 the Gabrovo Regional Court rejected the request. It held, inter alia , that the applicant ’ s argument in relation to the powder could not be sustained. It was true that the physicochemical expert report ordered by the investigator had been delayed, but the field test carried out at the time of the seizure suggested that the powder did contain amphetamine. In proceedings relating to pre-trial detention, there was no need to analyse the evidence in depth because the level of proof required to sustain a reasonable suspicion was much lower than that required to sustain an indictment or a conviction. The court went on to fix, under Article 65 § 6 of the Code of Criminal Procedure 2005 (see paragraph 16 below), a two-month period , starting to run when its decision would become final, during which the applicant would be barred from making a fresh request for release except on health grounds .

8 . The applicant appealed, contesting in particular the court ’ s decision to opt for the maximum two-month period under Article 65 § 6 and pointing out that there was a fair chance that the physicochemical expert report , which would show that the powder seized from his flat did not contain methamphetamine, might become ready before the expiry of that period . The applicant went on to say that he had not abused of his right to seek release, filing such requests at approximately two-month intervals. These requests had not overburdened the courts or impeded the investigation, which was in any event not progressing – no work had been done on it since June 2012.

9 . On 2 January 2013 the Veliko Tarnovo Court of Appeal fully upheld the lower court ’ s decision. While noting that the physicochemical expert report had not been completed for a long time and that the applicant had already spent six months in pre-trial detention, it held that the length of that detention had not become excessive as it had not exceeded the applicable statutory time-limit. The court went on to note that the applicant had been convicted of offences like the one of which he stood accused many times. Lastly, the court held that the two-month period under Article 65 § 6 of the Code of Criminal Procedure 2005 was justified as the applicant had already sought release on no less than three occasions.

10 . The same day, 2 January 2013, the physicochemical expert report was made available. It said that the powder seized from the applicant ’ s flat did not contain any narcotic drugs but only caffeine, but went on note that four tablets and a small bottle also seized from the applicant ’ s flat on 9 September 2012 contained respectively clonazepam and methadone, both of which were narcotic drugs.

11 . Based on the se conclusions and unspecified witness evidence, on 30 January 2013 the investigator brought additional charges against the applicant , accusing him of possessing methadone with the intent to distribute it, possessing clonazepam, and distributing amphetamine. He did not impose any additional measure of restraint on the applicant in connection with these charges.

12 . In the meantime, on 29 January 2013 the applicant made a fourth request for release. In the course of t he hearing of that request on 6 February 2013 his counsel argued, inter alia , that the conclusion in the expert report that the powder seized from the applicant ’ s flat did not contain narcotic drugs undermined the suspicion against the applicant, and that the new charges brought against him did not have a proper evidential foundation either.

13 . On 6 February 2013 the Gabrovo Regional Court rejected the request. It held, inter alia , that since the two-month period fixed earlier under Article 65 § 6 of the Code of Criminal Procedure 2005 (see paragraph 7 above) had still not expired , it could not analyse the strength of the evidence against the applicant or the well- foundedness of the charges against him , and could only examine arguments relating to his health , which it found good enough for the applicant to remain in detention. The court went on to fix a further two-month period during which the applicant could not seek release except on health grounds.

14 . The applicant appealed, reiterating his arguments in relation to the lack of evidential foundation of the charges against him.

15 . In a final decision of 14 February 2013, the Veliko Tarnovo Court of Appeal dismissed the appeal. It found that the applicant ’ s health was good enough for him to remain in detention, and fully agreed with the lower court that , in view of the two-month period fixed under Article 65 § 6 of the Code of Criminal Procedure 2005 , the well- foundedness of the charges against the applicant could not be scrutinised. It also agreed with the imposition by the lower court of a further two-month period under that provision.

B. Relevant domestic law

16 . Article 65 § 6 of the Code of Criminal Procedure 2005 (which is almost the exact equivalent of Article 152b § 7 of the Code of Criminal Procedure 1974, added in 1999) provides that if a court rejects a request for release made by a pre-trial detainee, it may fix a period, not longer than two months after its decision becomes final, during which the detainee may not make a fresh request for release. The bar does not apply to requests based on a worsening of the detainee ’ s health.

17 . At the time when Article 157b § 7 of the 1974 Code was enacted, the doctrine explained that the aim of this rule was to prevent pre-trial detainees from filing requests for release daily, which would hamper the investigation and prevent its completion within a reasonable time. At the same time, the rule sought to protect the interests of pre-trial detainees by not laying down a fixed period during which they were barred from making a fresh request for release – which might unduly prevent them from seeking release based on intervening developments –, instead leaving that to the discretion of the court, which knew the specific facts of the case and would be able to make an informed assessment of the chance of such developments ( Е. Трендафилова, Промените в НПК от 1999 г. , Сиела , 2000 г., стр. 204 ) .

18 . The Bulgarian criminal courts have made frequent use of this possibility. They have held that this rule seeks to enable the investigating authorities to concentrate on the investigation and to prevent the abusive filing of recurrent requests for release (see опр . № 64 от 16.04.2009 г. по в. ч. н. д. № 100/2009 г., ВтАС , and опр . № 181 от 01.10.2009 г. по в. ч. н. д. № 239/2009 г., ВтАС ). They have sustained the fixing of such periods even where the detainee concerned has not previously made frequent requests for release (see, for instance, опр . № 181 от 01.10.2009 г. по в. ч. н. д. № 239/2009 г., ВтАС , and опр . № 59 от 12.02.2015 г. по в. ч. н. д. № 42/2015 г., ПАС ).

COMPLAINTS

19. The applicant complains that in their decisions of 6 and 14 February 2013 the Gabrovo Regional Court and the Veliko Tarnovo Court of Appeal refused to examine whether the reasonable suspicion that he had possessed methamphetamine with the intent to distribute it continued to exist after the expert report of 2 January 2013 said that the powder seized from his flat did not contain this narcotic drug. He points out that his pre-trial detention was only based on that initial charge, not on the fresh charges brought against him on 30 January 2013, and that, in any event, the Bulgarian courts did not at any point deal with the reasonableness of the suspicion underlying these fresh charges. He relies on Article 5 §§ 1 (c), 3, 4 and Article 6 § 1 of the Convention .

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s pre-trial detention compatible with Article 5 § § 1 and 3 of the Convention? In particular, did his detention after the expert report of 2 January 2013 properly fall within Article 5 § 1 (c) , given that it had only been imposed on the basis of the initial charge brought against the applicant on 9 June 2012, and that this charge only concerned the powder revealed by this report not to contain a narcotic drug? Also, were the criminal proceedings against the applicant conducted with special diligence , as required under Article 5 § 3 of the Convention?

2. Was the refusal of the Gabrovo Regional Court and the Veliko Tarnovo Court of Appeal in their decisions of 6 and 14 February 2013 to examine the strength of the eviden ce and the reasonableness of the suspicion against the applicant because of the previously imposed bar under Article 65 § 6 of the Code of Criminal Procedure 2005 compatible with Article 5 § 4 of the Convention?