CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28882/95                       by Ivan NANKOV                       against Bulgaria         The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 March 1995 by Ivan NANKOV against Bulgaria and registered on 6 October 1995 under file No. 28882/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       22 October 1996 and the observations in reply submitted by the       applicant on 24 February and 6 May 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Bulgarian national born in 1958 and residing in Lovech.   He is currently in prison.         The facts of the case as submitted by the parties may be summarised as follows.   A.     Particular circumstances of the case   Preliminary investigation         Prior to the events at issue the applicant had five convictions and was in prison for a year and several months.         In 1992 and 1993, following several thefts committed in villages in the regions of Troyan and Lovech, the prosecution authorities opened preliminary investigations against unknown perpetrators.         On 7 April 1993, under the authorization of a prosecutor, the police arrested the applicant and a Mr. K. ("the second co-accused"), searched their apartments and confiscated various objects, among them tools which could be used for opening a safe.         Between 7 and 9 April the applicant was detained at the police station in Troyan.   There he made handwritten statements in which he admitted having committed several thefts.   The police allegedly refused his request to provide him   with a lawyer and to bring him immediately before a prosecutor.         On 9 April 1993 the applicant was brought to the local Investigation Service (Regionalna sledstvena sluzhba) in Lovech. There, in the presence of an ex officio lawyer and of a prosecutor, the applicant was charged with at least eight thefts, allegedly committed between 10 June 1992 and 12 March 1993.   Also, the investigator (sledovatel) decided to detain the applicant on remand, especially in view of his previous convictions, as there was a danger of his absconding and committing other crimes.         After having informed the applicant of his right to remain silent, the investigator continued the same day with his interrogation. The applicant admitted most of the crimes with which he was charged and gave detailed information as regards the time and the manner in which they had been committed.   He also disclosed his accomplices.         When a copy of the minutes of the interrogation was presented to the applicant for signature, he refused to sign.   The applicant's lawyer signed the minutes without objections.         On 12 April 1993 a third alleged accomplice, a Mr. N. ("the third co-accused"), was arrested and charged with one of the thefts in the case, allegedly committed by him together with the applicant.         The applicant was again interrogated on 12 May 1993.         On 7 May, 7 June and again on 4 August 1993 the investigator examined fifteen or more witnesses.         On 17 June 1993 the investigator appointed four experts who had to establish whether certain objects confiscated from the applicant or his accomplices were connected with the crimes under investigation. Reports from these and other additionally appointed experts were presented on 14 July, 22 July and 27 August 1993.         On 1 September 1993 several additional preliminary investigations were joined to the applicant's case.   On 27 September 1993 the applicant and the second co-accused were charged with another eighteen thefts allegedly committed between 12 April 1992 and 12 March 1993 in various villages in the region.   Interrogated in the presence of his lawyer, the applicant denied the charges.         On 7 October 1993 the preliminary investigation was concluded and the case was sent to the Regional Prosecutor (Okrazhen prokuror) in Lovech.   On an unspecified date the applicant's co-accused were released on bail.   On 8 November 1993 the Regional Prosecutor prepared a joint indictment against the three accused persons, submitted it to the Lovech Regional Court (Okrazhen sad) and confirmed the applicant's detention on remand.         The applicant was indicted under Section 196a in conjunction with Sections 196 and 195 para. 1(3 - 5)   of the Penal Code (Nakazatelen kodeks) of eighteen thefts allegedly committed jointly with the second co-accused and of one theft allegedly committed with the third co- accused.   The applicant was accused as the instigator and the main actor in these crimes.         In December 1993 the applicant wrote to the Chief Public Prosecutor complaining, inter alia, that he had been ill-treated by the police upon his arrest in April 1993 and that some prison officers breached his rights.   His complaints, having been referred to the local prosecution authorities, were dismissed by decisions of 10 August and 14 December 1994 of the District and the Regional Prosecutor's Offices.   First instance proceedings         The   Lovech   Regional   Court    held   a    three-day    hearing   on 8 - 10 February 1994.   The Court admitted several civil claims for examination within the framework of the penal proceedings, examined the three co-accused, and heard eight experts and twenty-five or more witnesses.         The applicant stated that he was innocent and that he had given false confessions before the police and the investigator because of threats of ill-treatment.   The second co-accused also denied having committed the crimes he had been charged with.   The third co-accused, who had been charged with only one theft allegedly committed together with the applicant, made full confessions.         The Court confirmed the applicant's detention on remand and adjourned the case.         On 28 March 1994 the Court held a second hearing.   It heard several witnesses, the lawyers' and the prosecutor's oral submissions and the accused.         On 28 March 1994 the Court convicted the applicant and the third co-accused of a theft committed on 6 October 1992 with the use of special means to open locks.   The Court acquitted the applicant and the second co-accused on the charges concerning the remaining eighteen thefts as the prosecution had failed to prove them beyond doubt.   The confessions made by the applicant before the police and the investigator were considered as insufficient.         The applicant, as a recidivist, was sentenced under Section 196a of the Penal Code to fifteen years' imprisonment.   Appeal proceedings         The applicant and the prosecution authorities appealed to the Supreme Court.   The other convicted person apparently did not appeal. The Supreme Court scheduled a hearing for 15 June 1994.   On that day the hearing was adjourned for 19 September 1994 as the plaintiffs in the civil actions had not been summoned properly.         On 15 June and again on   21 November 1994 the applicant's lawyers unsuccessfully requested their client's release.         The case was again adjourned on 19 September 1994 until 14 November 1994, on 14 November 1994 until 16 January 1995, and on 16 January 1995 until 6 March 1995.         On 13 February 1995 the Supreme Court examined the applicant's petition for release.   The Court found that despite the lengthy period of detention there were no grounds for the applicant's release because the latest date for the hearing had been properly announced to the parties and, therefore, the case would be examined soon.         On 6 March 1995 the applicant again requested to be released.         The hearing of the appeal eventually took place on 26 April 1995. On 13 June 1995 the Supreme Court pronounced its judgment.   It found that the impugned judgment of the Lovech Regional Court contained factual errors and inconsistencies in its operative part where, apparently by some misunderstanding, the theft of 6 October 1992 was mentioned both in the conviction part and in the acquittal part.   Also, some other conclusions of the lower court were unfounded.   Therefore the Supreme Court quashed the judgment of 28 March 1994 in its part where the applicant was convicted of the theft of 6 October 1992 and also in some of the parts where he was acquitted of certain accusations.   The case was referred back to the Lovech Regional Court.   Renewed examination of the case         On 16 October 1995 the Lovech Regional Court held a hearing in the case.   It noted that the acquittal of the second co-accused had not been quashed by the Supreme Court and that therefore it had entered into force.   As a result the indictment against the applicant had to be modified, to exclude the accusation that he had acted with an accomplice.   This amounted to a substantial modification of the accusation which required a fresh indictment.   Therefore the Court terminated the judicial proceedings and sent the case again to the prosecution authorities.         The Court also dealt with the applicant's "numerous petitions for [release]".   It noted that the accusation against him remained that under Section 196a of the Penal Code, namely an accusation against a recidivist.   Therefore the detention on remand was obligatory, as provided for by Section 152 para. 3 of the Code of Criminal Procedure (Nakazatelno-protzesualen kodeks), amended in June 1995.   For this reason the release of the applicant was not possible.         On 19 October 1995 the applicant appealed to the Supreme Court against the refusal of the Lovech Regional Court to release him.   On 27 November 1995 the Supreme Court examined the appeal and found that under Section 152 of the Code of Criminal Procedure the only possible measure of judicial control as regards the applicant was his detention on remand.   This was so because the applicant had been accused under Section 196a of the Penal Code, as a recidivist.         On 29 December 1995 the Lovech Regional Prosecutor delivered an order in which it was noted, inter alia, that the remaining accusations against the applicant were for an amount which was no longer "extremely large" (osobeno goliam razmer) within the meaning of the Penal Code and that, therefore, the case had to be sent to an investigator and then to the District Prosecutor's Office (Raionna prokuratura)in Troyan.         On 16 December 1996, the investigator completed the additional investigation and sent the case to the District Prosecutor in Troyan. On an unspecified date the District Prosecutor submitted an indictment to the District Court in Troyan.         On 21 March 1997 the District Court in Troyan considered that the case did not fall within its jurisdiction and referred it to the Regional Court in Lovech.         On 2 April 1997 the Lovech Regional Court considered that the case had to be examined by the District Court in Troyan and returned it back.   On 10 May 1997 the Supreme Court resolved the competence dispute and ordered the case to be heard by the District Court in Troyan.         On 17 July 1997 the Troyan District Court held a hearing.   The Court heard the applicant, 6 witnesses and 4 experts.   As several other witnesses and experts did not appear, the Court adjourned the hearing to 23 October 1997.         Since January 1997 the applicant has submitted unsuccessfully several requests for release addressed to the courts in Lovech and Troyan.   On 5 June 1997 the President of the Troyan District Court rejected such a petition submitted on 3 June 1997.   He stated that the applicant was a recidivist and that therefore there were no grounds to release him.   During the hearing on 17 July 1997 the Troyan District Court refused the applicant's petition for release, made orally, because there were no changes in the circumstances which had served as grounds for the applicant's detention on remand.   Alleged ill-treatment in prison         On 8 November 1995 the applicant complained to the Regional Military Prosecutor (Okrazhna voenna prokuratura) in Lovech that he had been beaten by a prison guard on 5 November 1995 when he had protested that a group of prisoners was kept in the open air in cold weather. He submitted a medical certificate which showed a torn wound in the area of his left eye, and a superficial wound with the skin rubbed off in his right calf above the ankle.   The applicant also submitted handwritten declarations by 13 prisoners who confirmed the facts complained of.         On 13 December 1995 the Regional Prosecutor delivered his decision.   He found that the applicant had disobeyed the orders of the prison guard and had offended him while having his daily walk together with a group of prisoners.   For this reason the prison guard had escorted the applicant to the guards' office and had ordered him to explain his behaviour in writing.   The two men had been alone in the office when the applicant had made a sudden move.   The prison guard, who had been only recently recruited and was therefore unexperienced, had reacted immediately and had applied self-defence techniques.   The guard had then ordered the applicant to go to his cell to fetch a piece of paper for his explanations and had escorted him to the cell.   While in the cell the applicant had again made a sudden move and the guard had again reacted in self-defence.         The prosecutor concluded that the prison guard had erred in his assessment of the situation, having thought that he had been attacked. In principle the guard's behaviour could be a crime under Section 131(2)(4) of the Penal Code.   However his mistake had been due to his lack of experience.   As a whole the guard's act was "trivial" (maloznachitelen) within the meaning of Section 9   para. 2 of the Penal Code (see below Relevant domestic law).   For these reasons the prosecutor refused to open criminal proceedings against the prison guard, but added that the Director of the prison should impose a disciplinary penalty.         Immediately after the incident of 5 November 1995 the applicant was allegedly punished with a 14 days' stay in an isolation cell (izolirane v nakazatelna kilia).   B.     Relevant domestic law   a.     A crime under Section 196a in conjunction with Sections 196 and 195 para. 1(3 - 5) of the Penal Code is a theft of objects or money worth a very large amount; committed by a recidivist; in complicity with other persons; through the use of special tools for opening locks, destruction of fences or other obstacles; where the crime, in view of its consequences and all circumstances, constitutes a very grave case. The punishment for such a crime is ten to thirty years' imprisonment.   b.     The relevant part of Section 152 of the Code of Criminal Procedure, as in force until 4 June 1995, provided as follows:   <Translation>         "(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 ..."         The relevant part of Section 152 of the Code of Criminal Procedure, as in force between 4 June 1995 and August 1997, provided as follows:   <Translation>   "(1) Detention on remand shall be imposed [in case where the charges concern] a serious wilful crime.   (2)   In the cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused evading justice or of committing another crime.   (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] ..."   c.     In August 1997 Section 152 was amended.   Paragraph 3 was amended as follows:   <Translation>         "(3) Detention on remand pending the preliminary investigation cannot exceed one year.   Where the accusation concerns a crime punishable by more than 15 years' imprisonment, life imprisonment or the death penalty, [this time-limit] is two years."   d.     Section 194 para. 3 of the Code of Criminal Procedure provides for the possibility to appeal to the higher prosecutor against a refusal of a prosecutor to open criminal proceedings.   Under the Constitution and the Judiciary Act (Zakon za sadebnata vlast) there are district, regional and chief public prosecutors.   e.     Section 131(2) of the Penal Code concerns the infliction of bodily harm by an officer of the police or of another service.         According to Section 9 para. 2 of the Penal Code an act which formally has all the elements of a crime, but is manifestly "trivial", shall not be considered a crime.     COMPLAINTS   1.     The applicant complains, invoking Articles 3 and 13 of the Convention, that he was beaten in prison on 5 November 1995; that his ensuing complaint was dismissed arbitrarily by the Regional Prosecutor; that he could not appeal against this decision because he was threatened with solitary confinement if he did; and that generally nothing was done by the authorities to remedy the ill-treatment to which he was subjected on 5 November 1995.   2.     The applicant contends also that there has been a breach of the State's obligation under Article 25 of the Convention not to hinder the right to individual petition.   Thus, he was beaten because he stood for his and the prisoners' rights.   Moreover, he has been constantly threatened and ill-treated since it became known that he had submitted an application to the Commission.   3.     The applicant complains under Article 5 of the Convention of his continuing detention which was allegedly unlawful and excessively lengthy.   4.     The applicant also complains under Article 6 of the Convention of the length and the alleged unfairness of the criminal proceeding against him.   Thus, the police during the first two days of his detention forced him to make submissions by keeping him hungry for a day.   Moreover, he was threatened that he would be detained for many months at the police station, without access to a lawyer or to a prosecutor, if he did not confess.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 March 1995 and registered on 6 October 1995.         On 26 June 1996 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 22 October 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 24 February 1997 and submitted additional observations on 6 May 1997.     THE LAW   1.     The applicant complains, invoking Articles 3 and 13 (Art. 3, 13) of the Convention, that he was ill-treated by a prison guard on 5 November 1995 and that he did not have an effective remedy before the domestic authorities.         The Government submit that the applicant has not exhausted all domestic remedies.   Thus, according to Section 194 para. 3 of the Code of Criminal Procedure the applicant could have appealed to the higher prosecutor following the refusal to open criminal proceedings against the prison guard, such an appeal being an effective and accessible remedy.   The Government further refer to the Commission's practice according to which a civil action for damages is in principle an effective remedy in cases of alleged breaches of Article 3 (Art. 3) of the Convention (No. 8462/79, Dec. 8.7.80, D.R. 20, p. 184).   However, the applicant has not brought an action for damages.         The Government also maintain that the complaints under Articles 3 and 13 (Art. 3, 13) of the Convention are in any event manifestly ill- founded.   Thus, the applicant has not established that the alleged ill- treatment attained the minimum level of severity, as required in the Convention organs' case-law.         The applicant replies that he did not appeal to the Chief Public Prosecutor's Office following the refusal of the lower prosecutor to institute criminal proceedings against the prison guard because he feared that the prison administration would put him under solitary confinement if he appealed.   As this would have made his contact with the Commission impossible, he chose not to appeal but to continue his correspondence with the Commission.   The applicant states that "this was the only reason for [his] failure to appeal to the Chief Public Prosecutor's Office".         The applicant further submits that when complaining to the Regional Military Prosecutor on 8 November 1995 he proved his claims beyond any doubt.   Nevertheless the opening of criminal proceedings was refused.   Also, the prison guard was not punished despite the Regional Prosecutor's decision of 13 December 1995.   a)     The Commission notes at the outset that the Regional Prosecutor in his decision acknowledged the responsibility of the prison officer for the incident and indicated that a disciplinary penalty should be imposed.   However, the Government have not commented on the applicant's assertion that this was never done.   Also, the applicant has not been compensated in any way.   In these circumstances the Commission considers that the applicant may claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged breach of Article 3 (Art. 3).         The Commission recalls that under Article 26 (Art. 26) of the Convention an applicant is required to have a normal recourse to remedies which are available and capable of remedying the breaches alleged.   Article 26 (Art. 26) also entails a distribution of proof. Once the Government have shown that an effective remedy existed, it falls to the applicant to establish that it was ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from having to make use of it (Eur. Court HR, Beis v. Greece judgment of 20 March 1997, para. 32, to be published in Reports 1997-II, No. 34, para. 32).         In respect of a complaint of ill-treatment under Article 3 (Art. 3) of the Convention against Bulgaria the Commission has found that where the applicant has submitted criminal complaints to "all levels of the prosecution authorities", he is not required to embark on another attempt to obtain redress through a civil action for damages except, conceivably, in cases where the authorities, in the course of criminal proceedings opened for this purpose, have carefully examined the allegations of ill-treatment (Assenov, Ivanova, Ivanov v. Bulgaria, No. 24760/94, Dec. 27.6.96, D.R. 86, pp. 54, 71).         The Government have stressed the applicant's failure to bring a civil action for damages.   In view of its conclusions below the Commission does not consider it necessary to examine whether this was a remedy to be exhausted by the applicant.         The Commission notes that the applicant has not submitted an appeal under Section 194 para. 3 of the Code of Criminal Procedure to the Chief Public Prosecutor's Office, which is the highest level of the prosecutors' hierarchy. The applicant does not contend that this remedy was not effective, his only assertion being that he did not appeal by fear of reprisals.   However, the Commission notes that the applicant regularly addressed numerous complaints to various levels of the prosecution authorities, including when he complained in 1993 to the Chief Public Prosecutor of alleged ill-treatment and breaches of his rights by the police and by the prison administration.   Also, he wrote freely to the Commission.   It appears unclear why the fear of reprisals would have prevented him from writing to the Chief Public Prosecutor in respect of the incident of 5 November 1995.         The Commission therefore finds that the applicant has not exhausted all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   It follows that the applicant's complaint under Article 3 (Art. 3) must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   b)      As regards the applicant's complaint under Article 13 (Art. 13) of the Convention, the Commission has just found that he had at his disposal a remedy which has not been shown to be ineffective or unavailable.   In view of this finding it is not necessary to examine the applicant's contention that the Regional Prosecutor's decision of 13 December 1995, which indeed acknowledged the responsibility of the prison officer, was arbitrary and did not provide an effective remedy.         It follows that the complaint under Article 13 in conjunction with Article 3 (Art. 13+3) of the Convention is manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2).   2.     The applicant complains that the incident of 5 November 1995 and the general attitude of the prison administration amounted to a breach of Bulgaria's obligation under Article 25 (Art. 25) of the Convention not to hinder the right to individual petition.         The Government submit that this complaint has never been raised before the domestic authorities and that the applicant's allegations are not supported by any evidence.         The applicant maintains his complaint.         The Commission notes that the applicant has not substantiated the existence of a link between the incident of 5 November 1995 and his application to the Commission.   Indeed, when complaining to the prosecution authorities he stated that he had been beaten for having protested against an order.         The Commission does not consider, therefore, that the applicant was hindered in the exercise of his right to individual petition under Article 25 (Art. 25) of the Convention.   3.     The applicant complains under Article 5 (Art. 5) of the Convention that his continuing detention was unlawful and excessively lengthy.         Article 5 (Art. 5) of the Convention, insofar as relevant, provides as follows.         "1.   ... 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;         ...         3.    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 the applicant has not exhausted all domestic remedies.   Thus, he has not invoked his Convention rights, at least in substance, before the competent domestic authorities.         The Government further submit that the applicant's detention was lawful and justified under domestic law, which is in conformity with Article 5 (Art. 5) of the Convention.   Thus, under the relevant provisions of the Code of Criminal Procedure a recidivist who is charged with serious offences punishable by more than five years' imprisonment has to be detained on remand, there being no other alternative.         Furthermore, the applicant has not invoked any exceptional ground, such as, for example, his state of health, or any change of circumstances, to warrant a reassessment of the decision to detain him. The Government, without referring to any particular legal provision, submit that such reassessment would have been possible under Bulgarian law had there been relevant new circumstances.         As regards the length of the detention the Government state that the case is factually and legally complex; that the principle of establishing the truth has precedence over the principle of rapidity; and that at least for the time being the reasonable length of detention has not been exceeded.         The applicant replies, inter alia, that he has submitted numerous complaints to all competent institutions, that he is an innocent person kept unlawfully in prison, and that his detention is unreasonably lengthy.         He submits that the case against him was closed on 29 December 1995, but he was kept in detention for another nine months before he was charged again officially.   Also, he has been detained well beyond the nine months' time-limit under Section 222 of the Code of Criminal Procedure.   Furthermore, the prosecutors and the courts did not comply with the time-limits for the preparation of the indictment and for the hearing of the case respectively, as provided for under the pertinent regulations.         The Commission notes that the applicant submitted numerous requests for release to the prosecution authorities and to the courts, stating that his continuing detention was unlawful and unnecessary. The Government have not indicated any other remedy which should have been used by the applicant.   It follows that the applicant has exhausted all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   a)     The Commission notes at the outset that the applicant's complaints do not concern the first months of his detention, his concerns being only that after the lapse of certain time his detention on remand became allegedly unlawful and unreasonably lengthy.   The Commission is not called upon, therefore, to examine whether the applicant's arrest and his bringing before an investigator and a prosecutor in April 1993 were in conformity with the requirements of the Convention.   b)     The Commission considers that the applicant's complaint about the length of his detention falls to be examined under Article 5 para. 3 (Art. 5-3) of the Convention.         Having examined the applicant's complaints under Article 5 para. 1 (Art. 5-1) of the Convention of the alleged unlawfulness of his continuing detention and under Article 5 para. 3 (Art. 5-3) in respect of its length, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds for declaring it inadmissible has been established.   4.     The applicant complains under Article 6 (Art. 6) of the Convention of the length and the alleged unfairness of the criminal proceeding against him.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows.         "1.   In the determination of ... any criminal charge against       him, everyone is entitled to a fair ... hearing within a       reasonable time by an ... impartial tribunal ..."         The Government submit that the requirements of Article 26 (Art. 26) of the Convention have not been met because the applicant has not requested the courts to proceed quicker and has not invoked in substance his right to a trial within a reasonable time.   The Government refer to the Castells v. Spain judgment of 23 April 1992 (Eur. Court HR, Series A no. 236).   In any event, the Government are of the opinion that the reasonable time requirement of Article 6 para. 1 (Art. 6-1) of the Convention has not been breached in view of the complexity of the case, which involved numerous crimes committed with different accomplices.   Also, the behaviour of the applicant led to delays.         The Government also submit that the application was introduced at a moment when the case had been sent back from the Supreme Court to the lower courts.   Therefore, the applicant had at his disposal the possibility of appealing against any later judgment which would be given in his case and he cannot claim to be a victim of a breach of Article 6 (Art. 6), there being no final decision in his case.         The applicant replies, inter alia, that he has exhausted all possible remedies; that he is a victim of a violation because he has been detained for four years; that the courts and the prosecutors did not establish the truth but manipulated the evidence and abused their power; and that all reasonable limits of the length of the proceedings have been exceeded.   a)     The Commission has first examined the applicant's complaint concerning the length of the criminal proceedings against him.         In respect of the Government's objection under Article 26 (Art. 26) of the Convention the Commission recalls that the case of Castells v. Spain (Eur. Court HR, loc. cit.), referred to by the Government, concerned complaints under Article 10 (Art. 10) of the Convention.   As regards complaints under Article 6 para. 1 (Art. 6-1) concerning the length of criminal proceedings the Commission has held that an application by the accused to accelerate the proceedings cannot be regarded as an effective remedy, the accused being under no obligation to cooperate in proceeding against him (No. 8435/78, Dec. 6.3.82, D.R. 26, p. 18).   The Government's objection must therefore fail.         Having examined the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the criminal proceedings against him, the Commission finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This part of the application cannot, therefore, be regarded as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds for declaring it inadmissible has been established.   b)     In respect of the applicant's complaint under Article 6 (Art. 6) of the Convention that the proceedings against him were unfair, the Commission recalls that according to Article 25 (Art. 25) it may examine complaints only from persons claiming to be victims of a violation of one of the Convention provisions.         The primary purpose of Article 6 (Art. 6), as far as criminal matters are concerned, is to ensure as a whole a fair trial by a "tribunal" competent to determine "any criminal charge".   Nevertheless, the requirements of paragraph 3(c) of Article 6 (Art. 6-3-c) could be relevant in pre-trial proceedings insofar as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them (Eur. Court HR, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, para. 36; cf. also Can v. Austria, Comm. Report 12.7.84, paras. 49, 50, Eur. Court HR, Series A no. 96, pp. 15, 16).         However, the proceedings against the applicant have not been concluded by a final judgment.   His conviction has been quashed and the legal effect of his trial, which was allegedly unfair, has thus been annulled.   The Commission cannot speculate about how the applicant's second trial will continue, whether it will be fair as a whole, or whether the applicant will be convicted.   The Commission finds that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right to a fair trial and respect of his defence rights under Article 6 (Art. 6) of the Convention (cf. No. 31195/96, Dec. 27.2.97, D.R. 88, p. 169).         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission,         unanimously,       DECLARES ADMISSIBLE, without prejudging the merits, the       applicant's complaints concerning the alleged unlawfulness and       the length   of his detention on remand; and concerning the length       of the criminal proceedings against him;         by a majority,       DECLARES INADMISSIBLE the remainder of the application.         DECIDES to take no further action in respect of the applicant's       complaint of the alleged hindrance of his right to individual       petition under Article 25 of the Convention.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber