CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mars 2006

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   D. Spielmann, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 23 July 1999, Having regard to the fact that no observations were submitted by the respondent Government, Having regard to the observations submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicant, Mr Angel Nikolov Atanasov, is a Bulgarian national of Roma origin, who was born in 1968 and lives in Plovdiv. He was represented before the Court by Mr D. Marinov, a lawyer practising in Plovdiv. The respondent Government were represented by their agent, Ms   M.   Dimova, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The criminal proceedings against the applicant The applicant is disabled, his left leg having been amputated after an accident, and uses a prosthesis. On 19 March 1999 the applicant had been drinking in a bar with his wife. After becoming intoxicated, he quarrelled with another customer (the “victim”). Upon leaving the establishment, the applicant punctured the tires of the victim’s car with his knife. The victim and some of his friends chased the applicant, who tried to hide in a small shop. The victim followed him inside and tried to help the shop’s proprietor force the applicant to leave. A scuffle ensued, which resulted in the applicant inflicting three stab wounds to the victim in the area of the neck. The applicant later maintained that he had acted in self-defence. Later on the same day, 19 March 1999, a preliminary investigation was opened against the applicant for attempted murder. He was detained by the police and held overnight. At 10.30 a.m. on 20 March 1999 the applicant was charged with attempted murder and remanded in custody. The applicant was represented by counsel at all stages of the proceedings. The preliminary investigation concluded sometime in May 1999. On an unspecified date, an indictment for attempted murder was entered against the applicant with the Plovdiv Regional Court. The victim joined the proceedings as a civil claimant on 2 July 1999. The Plovdiv Regional Court conducted hearings on 2 July, 28 September and 29 October 1999. At the hearing on 2 July 1999 the court heard statements from the applicant, the victim, several witnesses and a number of medical and psychological experts. At the hearing on 28 September 1999 the court heard testimonies from a number of witnesses and a medical expert. The applicant contends that one of the witnesses testified that he had heard the victim threatening to kill the applicant before the scuffle broke out, but that following a request from the judge for clarification of the statement the witness had retracted or changed his testimony. On 29 September 1999 the applicant petitioned the court to supplement the minutes of the hearing of the previous day so as to include the judge’s questions on the grounds that it had been an attempt to influence the witness’s testimony. By decision of 29 October 1999 the court dismissed the applicant’s request, noting that questions to witnesses did not form part of the minutes of a hearing and that the applicant had not objected to the judge’s manner of questioning during the hearing. At the court hearing of the same day, 29 October 1999, the court heard testimonies from witnesses and a medical expert. In its closing arguments, the prosecution, citing mitigating circumstances, such as the applicant’s disability and the lack of previous convictions, sought a sentence of three years’ imprisonment, which was below the statutory minimum of ten years’ imprisonment. By judgment of the same day, 29 October 1999, the Plovdiv Regional Court found the applicant guilty of attempted murder, sentenced him to six years’ imprisonment and ordered him to pay damages to the victim. In reaching its decision, the court relied on the statements of the applicant, the victim, the numerous witnesses and the conclusions of the medical and psychological experts. The court found that the applicant, who was drunk at the time of the events and could not remember everything, had not acted in self-defence when he stabbed the victim three times in the neck because there was insufficient evidence that a direct and imminent threat towards him existed at the time. The applicant appealed against the judgment of the Plovdiv Regional Court on 25 November 1999. He argued, inter alia , that there had been procedural violations, such as the first-instance court influencing the statements of witnesses, and that the court had reached erroneous conclusions as a result of wrongly interpreting the evidence before it, especially in respect of his contention that he had acted in self defence. The applicant also petitioned the second-instance court to conduct a crime-scene experiment and to once more question some of the witnesses. By resolution of 26 January 2000 the Plovdiv Appellate Court dismissed the applicant’s request to conduct a crime-scene experiment and to once more question some of the witnesses as it considered that it would not contribute anything new to the proceedings. At a hearing on 29 February 2000 the Plovdiv Appellate Court only heard statements from the applicant and the prosecution. The applicant’s statement was the following: “I do not want to leave prison because other things are happening. The civil claimants are going to my house and threatening that they will kill my older brother. I am afraid that when I leave prison my life will again be in danger. ...” By judgment of 9 March 2000 the Plovdiv Appellate Court dismissed the applicant’s appeal, but, in view of the existing mitigating circumstances, reduced his sentence to four years’ imprisonment. The court found no evidence of the claimed procedural violations and that the first-instance court had attempted to influence the statements of witnesses. In addition, the Plovdiv Appellate Court noted that the applicant’s counsel had stated before the first-instance court that he did not want any further evidence to be gathered and, furthermore, that no request for gathering of such evidence had been made in the subsequent appeal. The court also concluded that the applicant had not acted in self defence. On an unspecified date, the applicant filed a cassation appeal, arguing, inter alia , that there had been procedural violations by the lower-instance courts. In particular, he maintained that the first-instance court had been prejudiced towards the applicant because of his Roma origin and that the presiding judge of that court had unduly influenced witnesses by his manner of questioning. The atmosphere of intolerance allegedly made the gathering of new evidence meaningless. In respect of the second-instance court, the applicant claimed that it too refused to gather evidence and hear witnesses. In conclusion, the applicant maintained that, as a result of the aforementioned violations, the courts wrongly interpreted the facts of the case. A hearing was conducted by the Supreme Court of Cassation on 7 July 2001. By judgment of 23 July 2001 the Supreme Court of Cassation quashed the judgment of the second-instance court and remitted the case back to the Plovdiv Appellate Court. It found that the second-instance court had insufficiently examined the applicant’s contention that he had acted in self defence. By judgment of an unspecified date, the Plovdiv Appellate Court again dismissed the applicant’s appeal against the first-instance court’s judgment, allegedly on similar grounds to those contained in its judgment of 9 March 2000. The applicant decided not to file a cassation appeal against this second judgment of the Plovdiv Appellate Court. 2.     The applicant’s detention and his appeals against it The applicant was detained sometime on 19 March 1999 and was held overnight. At 10.30 a.m. on 20 March 1999 the applicant was remanded in custody upon a decision of an investigator, which was confirmed later in the day by the Prosecutor’s Office. The justification for detaining the applicant was: “Article 152 § 1 of [the Criminal Code] – a serious intentional offence has been committed”. Subsequently, the applicant filed three unsuccessful appeals against his detention. The applicant’s first appeal was filed with the Plovdiv Regional Court on 29 March 1999. It was examined ten days later on 8 April 1999 when the court dismissed it on the grounds that he had been charged with a serious intentional offence and could obstruct the investigation, because it was still ongoing. Following the conclusion of the preliminary investigation, the applicant filed another appeal against his detention on 4 June 1999 with the Prosecutor’s Office. The applicant argued that there was no danger that he would abscond, re-offend or obstruct the investigation especially as the latter had already been concluded. In addition, he noted that he was finding the detention difficult because of his disability. The appeal was not processed, so he re-filed it on 14 June 1999 directly with the Plovdiv Regional Court. The applicant’s appeal was examined by the trial court at its hearing on 2   July 1999. The Plovdiv Regional Court dismissed the applicant’s appeal. It found that because he had been charged with a serious offence there were sufficient legal grounds to continue his detention. Furthermore, none of the relevant circumstances, which might entail a re-evaluation of the grounds of his detention, had changed. The applicant appealed against the decision of the Plovdiv Regional Court on 5 July 1999. By decision of 8 July 1999 the Plovdiv Regional Court, in camera, refused to quash or amend its decision of 2 July 1999 citing similar grounds to those in its challenged decision. By decision of 28 July 1999 the Plovdiv Appellate Court, in camera, dismissed the applicant’s appeal and upheld the lower court’s decisions. The court found that the continued detention of the applicant was in conformity with the relevant provisions of the Criminal Code and that none of the relevant circumstances, which might entail a re-evaluation of the grounds of his detention, had changed. On 29 September 1999 the applicant filed his third appeal against his detention on grounds similar to those in his appeal of 4 June 1999. The applicant also maintained that there had been a change in the relevant circumstances, i.e. that he had been detained for more than six months and that he was finding the detention difficult because of his disability. He also challenged the notion that he should be treated as being charged with a serious offence because the evidence gathered at the hearings had allegedly proven otherwise. The applicant explicitly questioned whether his continued detention was in conformity with Article 5 § 1 (c) of the Convention. The applicant’s third appeal was examined on 29 October 1999, when the trial court dismissed it without giving explicit reasons and adopted its judgment finding the applicant guilty of attempted murder. B.     Relevant domestic law and practice The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria , no.   33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria , no.   39084/97, §§ 79-88, ECHR 2003 ‑ XII (extracts)). COMPLAINTS 1.     The applicant complained under Article 5 § 1 (c) of the Convention that he was detained unlawfully. The applicant also complained that his pre-trial detention was unjustified because the authorities failed to take into account his lack of a criminal record, that he was disabled and with a good reputation. 2.     The applicant complained under Article 5 § 3 of the Convention that after he was detained he was not brought promptly before a judge or other officer authorised by law to exercise judicial power. 3.     The applicant complained under Article 5 § 4 of the Convention that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, the applicant complained that his appeals were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention. 4.     The applicant complained under Article 6 § 1 of the Convention that the courts were not impartial, because the presiding judge of the first-instance court had unduly influenced the statements of certain witnesses with his manner of questioning, that he was denied a fair trial because the courts wrongly evaluated the evidence before them and that the length of the proceedings was excessive. 5.     The applicant complained under Article 14 of the Convention that, because of his Roma origin, the courts had discriminated against him by not providing him with a fair trial. 6.     The applicant complained under Article 13 of the Convention that he lacked effective remedies for his Convention complaints. THE LAW A.     Complaint under Article 5 § 3 of the Convention that the applicant was not brought promptly before a judge or other officer authorised by law to exercise judicial power The applicant complained under Article 5 § 3 of the Convention that after he was detained he was not brought promptly before a judge or other officer authorised by law to exercise judicial power. The relevant part of Article 5 § 3 of the Convention provides the following: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...” The Government did not submit observations on the admissibility and merits of this complaint. The applicant reiterated his complaint. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B.     Complaint that there was a lack of justification for the applicant’s pre-trial detention The applicant complained that his pre-trial detention was unjustified because the authorities failed to take into account his lack of a criminal record, that he was disabled and with a good reputation. The Court finds that this complaint falls to be examined under Article 5 §   3 of the Convention, the relevant part of which provides the following: “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 did not submit observations on the admissibility and merits of this complaint. The applicant reiterated his complaint and claimed that there had been sufficient evidence before the domestic courts that he would not abscond or re-offend, namely that he was disabled, had a permanent address and a good reputation and had been living on welfare. In addition, he lacked a prior criminal record and maintained that his actions at the time of the incident had been out of character as he had been under the influence of alcohol. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. C.     Complaints under Articles 5 § 4 and 13 of the Convention The applicant complained under Articles 5 § 4 of the Convention that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, he complained that his applications for release were decided in violation of the requirement for a speedy decision. The applicant also complained, invoking Article 13 of the Convention, that he did not have at his disposal an effective domestic remedy for his Convention complaints. The Court considers that the complaints should be understood as referring to the applicant’s inability to effectively challenge his detention under Article 5 § 4 of the Convention. In addition, the Court recalls that Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13 (see, among other authorities, Nikolova   v. Bulgaria , cited above, §   69 and M.A. and M.M. v. France (dec.), no. 39671/98, ECHR 1999-VIII). Accordingly, the Court must examine these complaints only under Article 5 § 4 of the Convention, which provides the following: “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.” The Government did not submit observations on the admissibility and merits of this complaint. The applicant reiterated his complaints and noted that when dismissing his applications for release the domestic courts had relied on the seriousness of the offence with which he had been charged and had excluded any examination of whether there was a “reasonable suspicion” against him or of his personality. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. D.     The remainder of the applicant’s complaints The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints concerning (1) the applicant not being brought promptly before a judge or other officer authorised by law to exercise judicial power, (2) the alleged lack of justification for his pre-trial detention, (3)   the alleged limited scope of judicial review of the lawfulness of his detention, and (4) that his applications for release were decided in violation of the requirement for a speedy decision. Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President