CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 35220/97                       by Ludmil BOICHINOV                       against Bulgaria           The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV         Having regard to Article 25 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 47 of the Rules of Procedure of the Commission;         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.   He is currently in prison.         The facts of the case as submitted by the applicant may be summarised as follows.   A.     Particular circumstances of the case         The criminal proceedings and the applicant's detention         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 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 did not deny that he was present during the killings but stated that it had been Mr G. who had shot the victims.         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 April 1995 the applicant's lawyer submitted to the Regional Court (Okrazhen sad) in Vratsa an appeal under Section 33 para. 3 of the Law on the National Police (Zakon za natzionalnata politzia).   He stated that the statutory limit of 24 hours of arrest under the Law on the National Police had been exceeded and that the applicant should be released.         On 27 April 1995 an investigator (sledovatel) 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.         On 28 April 1995 the Vratsa Regional Court dismissed the applicant's appeal noting that a decision for his detention on remand had already been taken and that his arrest under the Law on the National Police had not been unlawful.         The preliminary investigation was concluded on 22 February 1996 after the examination of 22 witnesses and 8 experts.   On the same date the Regional Prosecutor's Office (Okrazhna prokuratura) submitted an indictment to the Regional Court.         During the preliminary investigation stage of the proceedings the applicant submitted to the investigator and to the prosecution authorities several unsuccessful requests for release on bail.         On 28 May 1996 the Regional Court held a hearing with the participation of the applicant.   The Court found that further investigation was necessary and returned the case to the prosecutor. On 5 June 1996 the prosecutor returned the case to the investigator. Following the conclusion of the additional investigations a revised indictment was submitted to the Court in October 1996.       The Regional Court held a hearing on 29 and 30 January 1997.   The Court admitted for joint examination three civil claims submitted by the relatives of the victims, heard the applicant and more than 15 witnesses and 4 experts.   Some of the witnesses refused to answer certain questions.         The hearing was adjourned until 10 March 1997 when the court heard more witnesses and 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 of a five-member committee of 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.   On 10 March 1997 the Court also dismissed the applicant's request for release on bail.         The hearing resumed on 13 May 1997 when the Court heard the applicant, the five-member expert committee and 5 witnesses.   The applicant, who explained in detail the events before and after his arrest, did not mention the alleged ill-treatment by the investigator (see below).   The Court also dismissed the applicant's request to be released on bail.   The Court adjourned the hearing as two witnesses had not appeared.   A warrant for the arrest of one of them had been issued, but he had not been found yet.         The hearing resumed on 9 September 1997.   At that hearing Mr G. partially altered his testimony.   The Court refused the applicant's request for release on bail in view of the crime with which he was accused and adjourned the hearing until 6 November 1997.         At the hearing of 6 November 1997 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 who had not appeared was essential and adjourned the hearing until 4 March 1998.   The Court also accepted the request of the prosecution for the questioning of an anonymous witness.         Throughout the proceedings the applicant was represented by two and at some stages by three lawyers.   The applicant himself was also active during his trial.   He often put direct questions to the witnesses and addressed the Court.   He invoked Article 6 of the Convention complaining of the length of the proceedings.   Alleged ill-treatment and conditions in prison         The applicant claims that on four occasions he was battered by the investigator who was handling his case.   The first incident allegedly occurred on 27 April 1995 when the applicant was officially charged.   The applicant submits that when he asked for a lawyer he received instead several blows on his head.   The second incident was in May 1995 when the investigator and three policemen allegedly brought the applicant out of town, in the woods, tied him with handcuffs to a tree and started beating him "to death".   The third incident occurred in the office of the investigator in June 1995.   The applicant allegedly accused the investigator of having taken a bribe by the murderer against the promise to frame an innocent person.   In response the investigator allegedly started beating him.   The fourth occasion was in August 1995 when the investigator allegedly battered the applicant in his office in similar circumstances.         The applicant has not seised the competent prosecution authorities with complaints in respect of the above events.         The applicant submits that he spent the first eight months of his detention in a cell measuring 1,50/2,00 metres, which he shared with another person.   The cell had no window.   There were only a wooden bed and a bucket full of water which was to be used as lavatory. Furthermore, the food was very scarce and he was given only six cigarettes per day.   The applicant claims that before his arrest he weighed 100 kg and that he lost 40 kg during the first eight months of his detention.   The applicant has not indicated how often and for how long he was allowed to leave the cell.         On 15 December 1995 the applicant was transferred to the prison in Vratsa where he is in a cell with two other persons.   It appears that there is a television set in the cell.   The applicant is allowed to go in the open air for an hour each day and also three times per day to have three to five minutes for his toilet.   B.     Relevant domestic law and practice   a.     The Code of Criminal Procedure (Nakazatelno-protzesualen kodeks)         The relevant part of Section 152, as in force until 4 June 1995, provided as follows:   <Translation>   "(4) The detained person shall be provided immediately with a possibility to file an appeal before the court against the [imposition of detention].   Within a time-limit of three days from the filing of the appeal the court shall pronounce a decision which is final."         Under an amendment which entered into force on 4 June 1995 this provision became paragraph 5 and the words "before the court" were replaced by the words "before the competent court".         The Supreme Court (Varhoven sad), in a decision of 17 September 1992, found that the imposition of detention on remand could be contested before a court under Section 152 only once.   A new appeal was only possible where a detained person had been released and then again detained.   In all other cases a detained person could always request his release from the prosecution authorities if there had been a change of circumstances (opredelenie No. 94 po n.ch.h.d. No. 754/92, I n.o., Sb. 1992-93 str. 173).         As a result of this jurisprudence periodic judicial review of the lawfulness of a detention on remand was only possible at the trial stage of the criminal proceedings, in accordance with Section 304 of the Code of Criminal Procedure.   According to Section 344 the decision of the trial court is subject to appeal to the higher court.         In August 1997 the Code was amended.   Paragraph 4 of the new Section 152a stipulates that the detained person can repeatedly file judicial appeals against his detention where there has been a change of circumstances.   b.     The Law on the National Police         According to Sections 33 and 34 where a person has been lawfully arrested by the police, he can be kept under police arrest for up to 24 hours, longer periods of time being permissible only in cases where the arrested person had escaped from detention or in other cases provided for by act of Parliament.         According to paragraph 3 of Section 33 the arrested person shall have the right to challenge the lawfulness of his arrest before a court.   The court shall decide promptly.     COMPLAINTS   1.     The applicant complains under Article 3 of the Convention that he was battered by the investigator and that he has been detained in inhuman conditions.         As regards the exhaustion of the domestic remedies in respect of this complaint the applicant submits that he has written to the Parliamentary committee on human rights and to the Director of the National Investigation Service.   These complaints allegedly did not result in any decision being taken.   The applicant also submits that after some of the beatings he was knocking on the door of his cell asking for a doctor, but to no avail.   Also, as the investigator and the prosecutor in his case were corrupt and partial, there was nothing to be gained from submitting complaints.   2.     The applicant also complains under Article 5 paras. 1(c) and 2 of the Convention that his detention was unlawful.   In particular, the order for his arrest did not explain in detail the grounds for the accusations against him.   Also, as he was innocent it was unlawful to rely on the danger of absconding after having committed a crime.         The applicant also complains, invoking Article 5 paras. 3 and 4 of the Convention, that his trial commenced 13 months after his arrest and that under the Bulgarian legislation as it stood at the time he could appeal before a court against his detention only once during the preliminary investigation stage of the proceedings.   3.     The applicant also complains under Article 6 of the Convention of the length of the criminal proceedings against him.         He also states that the investigator was partial, that the prosecutor was corrupt and that no person who has been detained on remand in Bulgaria has ever been found to be innocent.   Also, the media published articles in which it was explained that he was the murderer. In fact the murderer is at large and is manipulating and threatening the other witnesses.   Moreover, in December 1996 a prison officer allegedly threatened the applicant, on behalf of the investigator, that he should be careful not to talk a lot during his trial.   The officer allegedly told him that he should not forget that his wife and child were vulnerable and that he should give up his complaints before the Commission because "you [heard] how Loukanov died".   When the applicant protested against these threats he was allegedly punished by a 30-day restriction on the receipt of parcels from home.   Finally, the applicant submits that his defence rights have been breached because in the prison the visiting time for his lawyers is restricted to 30 minutes per day and only between 2 p.m. and 4 p.m.   Also, during the meetings it is noisy and there is no privacy as they take place simultaneously with the meetings of other prisoners in premises where there is a bar between the detainee and the visitor.   A prison officer is always present there.     THE LAW   1.     The applicant complains under Article 3 (Art. 3) of the Convention that he was beaten by the investigator in his case and that the conditions of his detention are inhuman.         Article 3 (Art. 3) of the Convention reads as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."   a)     As regards the alleged ill-treatment by the investigator the Commission notes that the applicant did not complain to the competent prosecution authorities as he could have under the applicable law (cf. No. 24760/94, Dec. 27.6.96, D.R. 86, pp. 54, 71; No. 28882/95, Dec. 10.9.97, unpublished).   Furthermore, he has not claimed that there has been any obstacle for him to submit complaints.   He only states that on one occasion his oral request for an examination by a doctor was ignored by the officers on duty and that the investigator and the prosecutor in his case were partial.         Nevertheless, the Commission finds it unnecessary to examine whether the problems alleged by the applicant barred his access to, or affected the effectiveness of, the available domestic remedies.   Even assuming that the applicant had no effective remedies at his disposal, his complaint of the alleged ill-treatment concerns events which allegedly occurred between April and August 1995 whereas the application before the Commission was introduced on 11 October 1996, after the expiry of the six months' time-limit under Article 26 (Art. 26) of the Convention.         It follows that this part of the application has to be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   b)     The Commission further finds it unnecessary to decide whether or not the applicant has exhausted the available domestic remedies in respect of his complaint of the conditions of detention as in any event this complaint has to be rejected for the following reasons.         Insofar as the applicant may be understood as claiming that the alleged inhuman conditions were those existing before his transfer to the Vratsa prison on 15 December 1995, and assuming that the applicant had no effective remedies at his disposal, the Commission notes that the application has been introduced on 11 October 1996, after the expiry of the six months' time-limit under Article 26 (Art. 26) of the Convention.         Insofar as the applicant may be understood as complaining about the conditions of his detention at the prison in Vratsa the Commission recalls that ill-treatment must attain a minimum level of severity if it is to fall under Article 3 (Art. 3).   The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).         The Commission notes that the applicant is allowed to be in the open air for one hour each day and also to leave his cell three times per day for his daily toilet.   Also, the applicant has not substantiated any particular detail capable of showing that the conditions in his cell are unbearable or inhuman.         On the basis of the material before it the Commission finds that the minimum level of severity for this complaint to fall under Article 3 (Art. 3) of the Convention has not been attained and that, therefore, the applicant's complaint as regards the conditions in the Vratsa prison is manifestly ill-founded.         It follows that this part of the application has to be rejected under Article 27 paras. 2 and 3 (Art. 27-2, 27-3) of the Convention.   2.     The applicant raises several complaints under Article 5 (Art. 5) of the Convention. This provision insofar as relevant, reads as follows:         "1.   Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the following       cases and in accordance with a procedure prescribed by law:       ...              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;       ...         2.    Everyone who is arrested shall be informed promptly... of       the reasons for his arrest and of any charge against him.   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...         4.    Everyone who is deprived of his liberty by arrest or       detention shall be entitled to take proceedings by which the       lawfulness of his detention shall be decided speedily by a court       and his release ordered if the detention is not lawful.       ..."   a)     Having examined the applicant's complaint that his detention was unlawful and contrary to Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the Convention the Commission finds that this complaint, which is not supported by any material submission, is wholly unsubstantiated and that therefore it has to be rejected as manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.   b)     Insofar as the applicant may be understood as complaining under Article 5 para. 3 (Art. 5-3) of the Convention of the length of his detention on remand, the Commission considers that it cannot, on the basis of the file, determine the admissibility of the above complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.   c)     The applicant also raises a complaint under Article 5 para. 4 (Art. 5-4) of the Convention stating that during the preliminary investigation of his case he was able to appeal against his detention only once as the relevant law at the time did not allow a second appeal.         The Commission recalls that a detained person must be able to take proceedings at reasonable intervals before a court to challenge the lawfulness of his detention where the nature of the deprivation of liberty under consideration would require it (Eur. Court HR, Winterwerp v. the Netherlands judgment of 23 October 1979, Series A no. 33).         The Commission also notes that according to the jurisprudence of the Supreme Court prior to the amendment of the Code of Criminal Procedure in August 1997 a judicial appeal under Section 152 against detention on remand was possible only once during the preliminary stage of the proceedings, regardless of the circumstances (see above Relevant domestic law and practice; cf. No. 24760/94, Assenov and others v. Bulgaria, Comm. Report 10.7.97, pending before the Court).         The Commission notes, however, that the applicant apparently did not submit any appeal under Section 152 of the Code of Criminal Procedure.   His appeal of 27 April 1995 was under Section 33 para. 3 of the Law on the National Police and concerned the lawfulness of the applicant's short arrest effected on the basis of this Law, prior to the investigator's and the prosecutor's decisions to impose detention on remand in the framework of the criminal proceedings.    It is therefore unclear whether without having availed himself of the existing possibility to challenge once before a court the lawfulness of his detention on remand, the applicant can now complain in abstracto of the legal obstacles to a second and periodical judicial review.         Also, the Commission notes that following the submission of the indictment to the Vratsa Regional Court on 22 February 1996, nine months after the applicant's arrest, the case was already in the hands of the trial court and that, accordingly, at that moment there occurred for the applicant the legal possibility to challenge his continuing detention before the Regional Court (see Relevant domestic law and practice).   Furthermore, on 28 May 1996 the applicant appeared in person before the Regional Court.         Therefore, in the particular circumstances the Commission does not consider that the law which at the relevant time restricted periodic judicial review of detention on remand affected the applicant to such an extent as to amount to a violation of his rights under Article 5 para. 4 (Art. 5-4) of the Convention.   It follows that his complaint under this provision is manifestly ill-founded and has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.         Finally, insofar as the applicant may be understood as complaining of the manner in which the Vratsa Regional Court conducted the proceedings of 28 April 1995, this complaint is submitted out of the six months' time-limit under Article 26 (Art. 26) of the Convention and has to be rejected under Article 27 para. 3 (Art. 27-3).   3.     The applicant also raises complaints under Article 6 (Art. 6) of the Convention.   This provision, 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 ...         2.    Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law.         3.    Everyone charged with a criminal offence has the following       minimum rights:         ...            b.     to have adequate time and facilities for the       preparation of his defence;         ..."   a)     As regards the applicant's complaint of the length of the proceedings, the Commission notes that they have lasted so far for two years and nine months.         Taking into consideration the apparent complexity of the case, the evidential difficulties caused by contradictions in the testimony of witnesses and by the refusal of some of them to testify, as well as the facts demonstrating the activity of the authorities, the Commission finds that the above complaint does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention and that therefore it should be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   b)     Insofar as the applicant complains of the alleged partiality of the investigator and of the prosecutor and of the alleged restrictions on his defence rights, the Commission recalls that a complaint under Article 6 (Art. 6) of the Convention concerning alleged unfairness of criminal proceedings would in principle be premature when these proceedings are still pending: the applicant cannot claim at that stage to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of a violation of his right to a fair trial (cf. No. 31195/96, Dec. 27.2.97, D.R. 88, p. 169).         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 applicant's complaints concern mostly the alleged partiality of the authorities dealing with the preliminary investigation of his case.   The proceedings against him have not been concluded by a final judgment and are still pending.   In these circumstances the Commission cannot speculate whether the applicant's trial 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.         It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Insofar as the applicant may be understood as raising a complaint that Bulgaria has not complied with her obligation not to hinder the right of individual petition under Article 25 (Art. 25) of the Convention in that a prison officer allegedly threatened him to withdraw his application to the Commission and that he was punished for protesting against this, the Commission, assessing the material before it and its credibility, finds that this complaint is   unsubstantiated and has to be rejected.         For these reasons, the Commission,           DECIDES TO ADJOURN the examination of the applicant's       complaint concerning the length of his detention on remand;         by a majority,       DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber