FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21560/03 
by Evgeni Nikolaev IVANOV 
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 5 February 2007 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mr R. Maruste
 Mr J. Borrego Borrego
 Mrs R. Jaeger, 
 Mr M. Villiger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 1 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Evgeni Nikolaev Ivanov, is a Bulgarian national who was born in 1961 and lives in Lovech. He is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia.

A.  The circumstances of the case

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

On 7 October 1996 the applicant was arrested at the Kalotina border check-point after a customs inspection found 995 bullets for a handgun inside small plastic bags which were hidden in a cavity of the car of Mr P.E., with whom the applicant was travelling to Serbia.

It is unclear when a preliminary investigation was opened against Mr P.E. and the applicant.

An attempt was made to question the applicant on the following day, 8 October 1996, but he refused to answer questions.

On 9 October 1996 the applicant was charged with being an accomplice to smuggling and illegal possession of ammunitions (Articles 242 and 339 of the Criminal Code). Under the same order of the investigator, approved later in the day by a prosecutor, the applicant was detained on remand.

On 13 November 1996 the applicant petitioned the Prosecutor’s Office to terminate the proceedings against him and to release him, which the Slivnitsa District Prosecutor’s Office dismissed on an unspecified date.

The applicant filed a second appeal against his detention on 20 November 1996, which was similarly dismissed by the Slivnitsa District Prosecutor’s Office on 22 November 1996.

The charges against the applicant were amended on 10 February 1997.

A further appeal by the applicant of an unspecified date was dismissed by the Sofia Regional Prosecutor’s Office on 25 February 1997.

Apparently in response to another appeal of the applicant, by decision of 7 April 1997 the Sofia Regional Prosecutor’s Office amended his detention on remand to bail in the amount of 50,000 old Bulgarian levs (approximately 53 German marks). The recognizance was deposited on an unspecified date and he was released on 11 April 1997.

In the meantime, on an unspecified date the preliminary investigation had concluded with a proposal to bring Mr P.E. and the applicant (the “defendants”) to trial and the case file had been transferred to the Slivnitsa District Prosecutor’s Office on 9 April 1997.

By decision of 10 April 1997 the Slivnitsa District Prosecutor’s Office remitted the case to the investigation as it found that the evidence against the defendants was insufficient. In particular, it instructed that a further examination be undertaken of the vehicle of the other defendant in order to determine the exact place where the ammunition had been found, whether the cavity had been specially constructed as a hiding place and, also, what time and technical manipulations were required to place and remove items from it. The Slivnitsa District Prosecutor’s Office also found that there had been serious procedural violations at the investigation stage because there had been considerable periods between the dates of the decision to amend the charges against the defendants of 10 February 1997, the date of presenting them with the said amendments and their questionings. In addition, the Prosecutor’s Office considered that the evidence had not been properly stored and that a restriction should be placed on the defendants not to leave the country.

The investigation obtained an expert’s report on 20 May 1997 detailing the location and specifics of the hiding place in the vehicle.

On 27 May 1997 the applicant was once again charged with being an accomplice to smuggling and illegal possession of ammunitions (Articles 242 and 339 of the Criminal Code) of which he was informed on the same day.

The case was transferred to the Slivnitsa District Prosecutor’s Office on an unspecified date.

The Prosecutor’s Office filed an indictment against the applicant on 18 June 1997 for the offences of smuggling and illegal possession of ammunitions (Articles 242 and 339 of the Criminal Code).

The Slivnitsa District Court conducted its first hearing on 4 December 1997 when it heard testimony from the defendants and an expert. The applicant pleaded not guilty and claimed to have been only a passenger in Mr P.E.’s car and not to have been aware of the hidden ammunition.

A second hearing was scheduled for 4 March 1998, but it is unclear whether it was conducted or not. On 15 April 1998 the court heard testimony from two customs officers and a second expert. At the hearing of 1 June 1998 the court heard witness testimony from another customs official.

In a judgment of 1 June 1998 the Slivnitsa District Court found the applicant guilty of being an accomplice to Mr P.E. to the offences of attempted smuggling and illegal possession of ammunitions (Articles 242 and 339 of the Criminal Code). It sentenced him to three years’ imprisonment. The other defendant was also found guilty and sentenced to a term of imprisonment.

On an unspecified date the applicant filed an appeal against the judgment of the Slivnitsa District Court. He argued that the findings of the court were unsubstantiated and unsupported by the evidence in the case, and also that there were serious procedural violations in the proceedings. The other defendant filed a similar appeal.

Following a hearing on 20 October 1998, the Sofia Regional Court delivered its judgment. It quashed the judgment of the first instance court due to procedural violations and remitted the case. The Sofia Regional Court found that the first instance court had failed to properly inform the defendants of their rights and that Mr P.E.’s lawyer had represented him without having the proper authorisation and while also being counsel for the applicant.

At the re-trial stage of the proceedings, the Slivnitsa District Court conducted five hearings between 13 September 1999 and 29 November 2000. Of those hearings, the applicant was not duly summoned for the hearing of 13 September 1999, the defendants’ lawyers did not attend the hearing of 24 January 2000 and the applicant was ill and an expert was not duly summoned for the hearing of 2 October 2000.

In a judgment of 29 November 2000 the Slivnitsa District Court found the applicant guilty of being an accomplice to Mr P.E. to the offences of attempted smuggling and illegal possession of ammunitions (Articles 242 and 339 of the Criminal Code) and sentenced him to four years’ imprisonment. The other defendant was also found guilty and sentenced to a term of imprisonment. The court based its findings on, inter alia, the fact that the trip had been proposed by the applicant but had not been planned in advance, that the bags of ammunition could not have been placed in the cavity of the vehicle without the knowledge of the car’s owner as it was not easily accessible, that a third person could not have had the time and opportunity to place them there and also that the defendants must have been aware of their presence as the bags had not been secured or isolated and would have been making a rattling or jingling noise while the car had been travelling along the local roads which were riddled with potholes.

On an unspecified date the applicant filed an appeal against the judgment of the Slivnitsa District Court arguing that its findings were unsubstantiated. The other defendant filed a similar appeal.

The Sofia Regional Court conducted four hearings from 9 July to 17 December 2001. Of those hearings, the second defendant was not duly summoned for the hearing of 9 July 2001, the same was ill for the next hearing on 8 October 2001 and the applicant’s lawyer fell gravely ill for the hearing of 3 December 2001. At its next hearing on 17 December 2001 the Sofia Regional Court examined the defendants’ appeals and declared the case ready for decision.

With decision of 1 March 2002 the Sofia Regional Court ordered that a re-hearing of the appeal be undertaken as it had established that one of the members of its formation on 17 December 2001 had also participated in the proceedings before the Slivnitsa District Court. The court also allowed the defendants to be questioned before it.

A new hearing was conducted on 15 April 2002 when the Sofia Regional Court examined the defendants’ appeals and declared the case ready for decision.

In a judgment of 14 June 2002 the Sofia Regional Court upheld the judgment of the first instance court, but reduced the applicant’s sentence to three years’ imprisonment. The court, inter alia, agreed with the findings of the lower court in respect of the applicant in that he had been the initiator of the trip and that while travelling with the car he would have been aware of the noise made by the unsecured plastic bags of ammunition.

On an unspecified date the applicant filed a cassation appeal against the judgment of the Sofia Regional Court arguing that its findings were unsubstantiated. The other defendant also filed a cassation appeal.

The Supreme Court of Cassation conducted a hearing on 13 January 2003 and delivered its final judgment on 24 April 2003. It dismissed the defendants’ appeals and upheld the findings and judgment of the Sofia Regional Court.

COMPLAINTS

1.  The applicant complained under Article 5 § 3 of the Convention that following his detention on 7 October 1996 he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power.

2.  The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair and that the domestic courts had not been impartial because their finding of guilty had not been substantiated or supported by the evidence in the case.

3.  The applicant complained under Articles 6 § 1 and 13 of the Convention of the excessive length of the criminal proceedings against him and the lack of effective remedies relating thereto.

THE LAW

A.  Complaints under Articles 6 § 1 and 13 of the Convention concerning the alleged excessive length of the criminal proceedings and the lack of effective remedies relating thereto

The applicant complained of the excessive length of the criminal proceedings against him and the lack of effective remedies relating thereto.

Article 6 § 1 of the Convention provides, as relevant:

“In the determination of ..., any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B.  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

Decides to adjourn the examination of the applicant’s complaints concerning the length of the criminal proceedings (Article 6 § 1) and the lack of effective remedies relating thereto (Article 13);

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

IVANOV v. BULGARIA DECISION


IVANOV v. BULGARIA DECISION