FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41211/98 
by Georgi Spasov IOVCHEV 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 18 November 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs F. Tulkens
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr K. Hajiyev, judges,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 25 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Georgi Spasov Iovchev, is a Bulgarian national who was born in 1965 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government are represented by Ms M.Dimova, co-agent, of the Ministry of Justice.

A.  The circumstances of the case

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

1.  The criminal proceedings against the applicant and his pre-trial detention

On 10 June 1996 the Plovdiv Regional Prosecutor's Office, acting pursuant to a signal from the state financial control authorities, which had audited a joint-stock company whose chairperson the applicant had been, and pursuant to a report by the economic police and a signal from the company's trustee in bankruptcy, decided to open criminal proceedings against the applicant. At that time the applicant was living in the United States of America, where he had gone on 30 October 1995.

On 20 June 1996 the applicant was charged in his absence with misappropriation of funds in large amounts, contrary to Article 203 § 1 in conjunction with Article 201 of the Criminal Code (“the CC”). It was alleged that in March 1994, when he had been the chairperson of the board of directors of the above-mentioned company, he had misappropriated 792,000 Swiss francs. Reasoning that the applicant was accused of a “serious” offence and that he had gone into hiding, the investigator in charge of the case decided that, once apprehended, the applicant should be placed in pre-trial detention. This decision was approved by the prosecutor in charge of the case.

The applicant submits that, after having been notified by relatives that the Bulgarian media were circulating information that criminal proceedings had been opened against him and that he was wanted by the authorities and after reading copies of newspapers brought by his wife in October 1996, he decided to return to Bulgaria.

The applicant arrived at Sofia airport on 25 October 1996 and was immediately arrested, questioned and brought to the detention centre at the Plovdiv Regional Investigation Service.

The following day, 26 October 1996, the applicant was apprised of the charges against him.

On an unspecified date the applicant's lawyer requested the Plovdiv Regional Prosecutor's Office to release the applicant, arguing that there was not enough evidence to prove that the applicant had committed an offence.

The Plovdiv Regional Prosecutor's Office denied the request in a decision of 21 February 1997. It reasoned that, since the applicant had been charged with a serious intentional offence, in accordance with Article 152 § 1 of the Code of Criminal Procedure (“the CCrP”) he had to remain in custody. The exception provided for by paragraph 2 of that Article was not applicable, because the applicant could jeopardise the investigation in view of the number of impending investigative measures. The issues whether there was enough evidence to sustain the charges against the applicant and whether the applicant had committed other offences would arise after the conclusion of the investigation.

The applicant's lawyer appealed to the Chief Prosecutor's Office, contending that there was no risk of the applicant absconding, committing an offence or jeopardising the investigation. In particular, the applicant had returned from abroad of his own accord, despite the fact that he knew that a criminal investigation was pending against him.

By an order of 3 April 1997 the Chief Prosecutor's Office dismissed the appeal. It reasoned that in view of the rule of Article 152 § 1 of the CCrP the applicant had to remain in custody. There was nothing to indicate that the applicant came within the exception provided for in Article 152 § 2. In particular, no medical reports indicating bad health of the applicant had been submitted.

The applicant submits that on 24 April 1997 his lawyer filed an appeal against his detention with the Plovdiv Regional Court. He provides a copy of the appeal bearing a seal stating that the appeal has been received on 24 April 1997 and bearing the signature of what appears to be a judicial clerk. The Government submit that that in fact no appeal was filed by the applicant and produce a certificate to that effect issued by the Plovdiv Regional Court.

On 26 April 1997 the applicant's lawyer filed a request for his release with the Plovdiv Regional Prosecutor's Office.

On 3 May 1997 the applicant was also charged with abuse of office, contrary to Article 282 § 1 of the CC, in the context of a new investigation against him, and his pre-trial detention was confirmed.

On 6 May 1997 the Plovdiv Regional Prosecutor's Office decided to release the applicant on bail. It reasoned that the full elucidation of the facts of the case necessitated the questioning of a witness who had absconded and was impossible to find. Hence the proceedings against the applicant had to be stayed pending the apprehending and the questioning of the witness. The applicant's continued detention was therefore unwarranted and he was to be released against giving an undertaking not to leave the town. Concerning the measure to secure appearance in the second proceedings against the applicant, the offence with which he had been charged – abuse of office – was not “serious” within the meaning of Article 93 § 7 of the CCrP and detention was therefore not mandatory under Article 152 § 1 of the Code. The applicant could thus be released on bail.

The applicant paid the bail amount on 6 May 1997 and was released the same day.

It seems that almost no investigative actions were performed between 1997 and 2001.

On 27 July 2001 the criminal proceedings against the applicant were stayed by decision of the Plovdiv Regional Prosecutor's Office. It reasoned that it was necessary to question two witnesses whose whereabouts were unknown. The proceedings were to be resumed immediately after the two witnesses were tracked down.

At the time of the latest information from the parties (February 2004) the proceedings were still stayed.

2.  The conditions of the applicant's detention

(a)  The actual conditions

From the day of his arrest on 25 October 1996 until he was released on 6 May 1997 the applicant was kept in the detention facility of the Plovdiv Regional Investigation Service.

There the applicant was held in a cell measuring twenty square metres, which he had to share with three other persons during most of the time. There were no beds and the detainees had to sleep on the cement floor, which they covered with dirty blankets. During the six months and twelve days that the applicant spent in the cell the blankets were allegedly not changed or washed. The cell was illuminated by a single electric bulb. There was no window or access to sunlight. The airing of the cell was apparently very poor. During the winter the temperature in the cell was approximately 10-12 degrees Celsius.

Food, the quantity and quality of which were according to the applicant very insufficient, was served without cutlery, in plastic mugs which were apparently not washed between meals. It seems, however, that the applicant was able to have food brought from the outside.

The applicant, as the other detainees, was allowed to go out of the cell for two to three minutes twice a day – in the morning and in the late afternoon – to go to the toilet. During the remaining time the detainees had to relieve themselves in a plastic bucket kept in the cell. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities.

No possibility for spending time in the open or for physical exercise was provided. The detainees could only leave the cell when they received visits, were brought for questioning, or were taken to court.

The applicant submits that there were periods of up to thirty or forty days during which he was not allowed to bathe. According to the Government, detainees were allowed to bathe once a week.

In an action brought by a person detained in the same detention facility at the same time as the applicant, the Plovdiv Court of Appeals stated that the conditions in the facility were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of ... Article 3 of the European Convention of Human Rights”.

(b)  Relevant reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The CPT visited Bulgaria in 1995 and again in 1999 and 2003. The Plovdiv Regional Investigation Service detention facility was visited in 1999 and 2003. All reports included general observations about problems in all Investigation Service facilities.

(i)  Relevant findings of the 1995 report (made public in 1997)

In this report the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a WC and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to 5-10 minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided.

The CPT also noted that family visits were only possible with permission and that as a result detainees' contact with the outside world was very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation's assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country's difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for 30 minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency.

(ii)  Relevant findings of the 1999 report (made public in 2002)

The CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements.

In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention on Investigation Service premises had remained generally the same as those observed during the CPT's 1995 visit, including as regards hygiene, overcrowding and out-of-cell activities. In some places the situation had even deteriorated.

With regard to the Plovdiv Regional Investigation detention facility, the CPT found that it was “overcrowded, poorly equipped and dirty, detainees' access to toilet/shower facilities was problematic, there was insufficient food and drinking water and a total absence of outdoor exercise and out-of-cell activities”. The CPT further found that detainees in that detention facility “still had to eat with their fingers, not having been provided with appropriate cutlery”.

(iii)  Relevant findings of the 2003 report (made public in 2004)

The CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded.

In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair.

Despite the CPT's recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”.

3.  The applicant's action under the State Responsibility for Damage Act

Shortly after his release, on 22 July 1997, the applicant filed an action against the National Investigation Service under the State Responsibility for Damage Act. He alleged that the conditions of his detention had constituted inhuman and degrading treatment, imputable to the defendant which was in charge of the administration of pre-trial detention facilities, and claimed 4,000,000 old Bulgarian levs (BGL)1 as compensation for non-pecuniary damage: pain, suffering and loss of self-respect.

The Plovdiv District Court held its first hearing in the case on 15 October 1997. It declared the action admissible, instructed the applicant that he bore the burden of proof and invited him to produce evidence in support of his claim. It also invited the defendant and a prosecutor, who participated as a “special party” to the proceedings, to present their observations.

The next hearing took place on 18 December 1997. The applicant requested that the director of the National Investigation Service be summoned as a witness and that an on-the-spot inspection be carried out in the detention facility and asked for leave to call four witnesses to prove the non-pecuniary damage the applicant had sustained as a result of the conditions of his detention. Counsel for the National Investigation Service requested that the applicant appear in person to testify about the facts laid out in his statement of claim. She also requested that the Ministry of Finance be added as a defendant. The applicant insisted that the proper defendant was solely the National Investigation Service. The court ordered the applicant to appear for questioning. It denied the request to summon the director of the National Investigation Service, holding that the facts could properly be established through other evidence. It also denied the request for an on-the-spot inspection, holding that almost a year had elapsed since the applicant had been released and that the current state of the detention facility could not be used as a basis for establishing its state at the time of the applicant's stay there. The court gave the applicant leave to call three witnesses. It denied the request to add the Ministry of Finance as a defendant, holding that the entity against which the action had been brought was the National Investigation Service.

By an order made in private on 23 January 1998 the court held that the complaint had been improperly characterised by the applicant as one under the State Responsibility for Damage Act. It held that the proper legal characterisation was under the general tort law. Accordingly, in order for the proceedings to continue the applicant had to pay the requisite court fee (four per cent of the amount claimed, i.e. BGL 160,000) within seven days.

The applicant did not pay the fee and the court discontinued the proceedings by an order of 12 March 1998.

On 27 March 1998 the applicant appealed against the order to the Plovdiv Regional Court.

On 29 June 1998 the Plovdiv Regional Court quashed the order and remitted the case to the Plovdiv District Court for continuation of the proceedings, holding that the proper legal characterisation of the facts alleged by the applicant was under the State Responsibility for Damage Act.

The next hearing before the Plovdiv District Court was listed for 2 November 1998, but was adjourned because of the improper summoning of the defendant.

On 15 December 1998 the applicant requested that the National Investigation Service be replaced as a defendant by the Plovdiv Regional Investigation Service and that the Ministry of Justice be added as a second defendant in view of legislative changes whereby the National Investigation Service was liquidated and the administration of the pre-trial detention facilities was transferred from the National Investigation Service to the Ministry of Justice.

On 8 December 1998 the applicant requested an expert opinion, in order to elucidate the hygienic and sanitary conditions in the detention facility.

The next hearing took place on 16 December 1998. The court granted the applicant's request to replace the defendant and add a new defendant and adjourned the proceedings for 4 February 1999 in order to allow the new defendant to prepare.

The next hearing was held on 4 February 1999. The prosecutor did not appear. Noting that there was no indication that the prosecutor had been duly summoned, the court decided to adjourn the case. On the motion of the applicant the court struck out the Plovdiv Regional Investigation Service as a defendant.

On 9 March 1999 the applicant requested that the Ministry of Finance be added as a defendant, arguing that this was necessary in view of the unclear regulation of the succession between the National Investigation Service and the Ministry of Justice as regards the administration of the pre-trial detention facilities.

The next hearing was held on 10 March 1999. The court questioned one witness called by the applicant who testified about the conditions in the detention facility. The applicant reiterated his request for an expert report and asked leave to call two more witnesses. The court stated that it would rule on all motions in private.

By an order made in private on 17 March 1999 the court denied the request for adding the Ministry of Finance as a defendant, holding that the facts alleged in the statement of claim did not point to a cause of action against it. It allowed the request for an expert opinion and invited the Plovdiv Hygienic and Epidemiologic Inspection to provide an expert who could draw up a report on the conditions in the detention facility.

The next hearing, scheduled for 26 April 1999, failed to take place because of the improper summoning of the Ministry of Justice.

On 27 April 1999 the applicant requested the court to revoke its order of 17 March 1999 as regards the refusal to add the Ministry of Finance as a defendant.

The next hearing took place on 7 June 1999. The court denied the applicant's request to revoke its order, holding that the Ministry of Finance had nothing to do with the subject-matter of the case before it. The court invited the applicant to call the allowed witnesses. Pursuant to the motion of the defendant the court also ordered the applicant to indicate specifically which government bodies and officials had, through their actions or omissions, caused the alleged damage.

The court, sitting in private on 6 July 1999, appointed an expert to draw up a report on the hygienic and epidemiological conditions in the detention facility.

A hearing listed for 20 September 1999 was adjourned because the judge in charge of the case was on sick leave.

The next hearing was held on 2 November 1999. The expert informed the court that she could not draw up the requested report. The court gave leave to the Ministry of Justice to call one witness and replaced the expert. The court also instructed the applicant to rectify his statement of claim within seven days, holding that he had not specified which illegal actions or omissions of which officials had occasioned the damage he alleged to have sustained.

On 11 November 1999 the applicant indicated that the officials allegedly responsible for these conditions were “the administration of the National Investigation Service”. Expressing his surprise that the court had not found this alleged omission in the statement of claim until the eighth hearing, the applicant requested that the judge withdraw from the case, averring that her conduct denoted bias against his client.

By an order of 18 November 1999 the court denied the request for withdrawal, holding that it had power to instruct the plaintiff to rectify its statement of claim during the entire duration of the proceedings before it and its having done so was not indicative of bias, but fully compliant with the rules of procedure. The court also discontinued the proceedings, holding that the applicant had not complied with its instructions to indicate the officials responsible for the conditions in the pre-trial detention facility and their exact allegedly illegal actions or omissions.

On 2 December 1999 the applicant appealed against the order for the discontinuation of the proceedings.

On 1 March 2000 the Plovdiv Regional Court quashed the order and remitted the case, holding that the proper defendant in proceedings under the State Responsibility for Damage Act were the government bodies and not the specific officials alleged to have caused the damage. The instructions of the Plovdiv District Court had therefore been without purpose.

On 16 March 2000 the Plovdiv District Court listed a hearing for 8 May 2000.

On 2 May 2000 the applicant filed a “complaint for delays” under Article 217a of the CCP with the chairperson of the Plovdiv Regional Court, alleging that the Plovdiv District Court had not proceeded with due diligence in examining his action. The chairperson of the Plovdiv Regional Court dismissed the complaint on 11 May 2000, holding that the case had been adjourned many times because of changes in the legislation, the adding of new defendants and the making of evidentiary motions by the parties. The intervals between the hearings had been justified by the busy schedule of the panel examining the case.

As between 2 and 11 May 2000 the case file had been transferred from the Plovdiv District Court to the Plovdiv Regional Court in connection with the examination of the above complaint, the hearing listed for 8 May 2000 did not take place.

The next hearing took place on 26 June 2000. The court questioned two witnesses called by the Ministry of Justice, who testified about the conditions in the detention facility. The applicant reiterated his request for an on-the-spot inspection of the facility. The court invited the applicant to concretise what circumstances he wanted to prove through the inspection. It also repeated its invitation to the applicant to call the witnesses for whom leave had previously been given.

The last hearing took place on 2 October 2000. The court noted that out of three witnesses whom the applicant had been allowed to call, only one had actually been called. It further noted that the applicant had not complied with its instructions to concretise the facts which he intended to establish through the requested inspection of the detention facility. The court thus denied the request to carry out an inspection. It also excluded the requested expert report from the evidence.

The Plovdiv District Court dismissed the applicant's action in a judgment of 2 November 2000. It held, inter alia, as follows:

“... [The applicant] bears the burden of establishing the facts which are favourable to him. He was many times invited to do so by the court, but has not presented evidence about the conditions in the detention facility as a result of which he has allegedly suffered non-pecuniary damage. Neither has he adduced evidence in support of the proposition that the damage which is the subject-matter of the claim is in a causal connection with illegal actions or omissions of officials of the National Investigation Service, which participated in the administration of the pre-trial detention facilities at the time when the applicant was in custody. Therefore the court considers that these facts have remained unproven. The court could not hold otherwise even if account is taken of the testimony of the witness [B.N.], because the witness and the [applicant] were not in the same cell ... It is true that that the witness testified about the conditions in the detention facility and the cell in which he had been, but ... his testimony does not establish the non-pecuniary damage suffered by the [applicant], as averred in the statement of claim. Nor does it establish that the non-pecuniary damage suffered by the applicant is a result of the conditions in the detention facility.

The court could not hold otherwise even if it takes into account the testimony of the witnesses [P.] and [I.], because in their testimony they describe the conditions in the detention facility and in the cell in which the [applicant] was kept, but do not establish the non-pecuniary damage claimed by the [applicant] and the fact that this damage is in a causal connection with the hygienic and material conditions in the detention facility.”

On 15 November 2000 the applicant appealed against the judgment to the Plovdiv Regional Court. He reiterated his request for an on-the-spot inspection of the detention facility.

On 28 February 2001 the Plovdiv Regional Court, sitting in private, gave the applicant leave to call one witness and denied his request for an inspection of the detention facility. It held that, since more than three years had elapsed after the applicant's release, an inspection could not establish the conditions in the facility at the time of his stay there.

A hearing was held on 23 May 2001. The applicant did not show up and did not bring the witness for whom leave had been given.

The Plovdiv Regional Court dismissed the appeal in a judgment of 22 November 2001. It held, inter alia, as follows:

“On the basis of the evidence adduced before this court and the court below, the [court] considers that the claim has remained unsubstantiated. The claim was for compensation for non-pecuniary damage suffered by the [applicant]. However, apart from proof about the general state of the hygiene in the detention facility at the time of the [applicant's] stay there, there is no proof about the specific damage suffered by him. The finding that the detention facility was in a poor hygienic condition does not per se lead to the conclusion that [the applicant] has suffered real moral, non-pecuniary damage, because the objective fact of the hygiene and the regime in the detention facility has a subjective and very individual impact on persons with different mentalities and social status. Due to the lack of evidence about the specific effects which the conditions in the detention facility had on the [applicant], as averred in the statement of claim, the claim remains unsubstantiated. The non-gathering of evidence about this is the result of the inactivity of the [applicant] alone. The witness called by him and questioned by the first-instance court did not testify about the applicant's condition during his stay in custody, and the other two witnesses for whom leave was given by the first-instance court and the third witness for whom leave was given by this court were not actually called by the [applicant] without him specifying good reasons for this omission. In view of this the [court] considers that the [applicant's] lack of procedural activity is tendentious and seeks to surmount the admissibility criteria for lodging an application with European Court of Human Rights...”

On 20 December 2001 the applicant lodged an appeal on points of law with the Supreme Court of Cassation.

The court listed a hearing for 18 February 2003. However, meanwhile, in November 2002, the CCP was amended, providing that appeals on points of law to the Supreme Court of Cassation were possible only in respect of actions where the amount in controversy was above BGN 5,000. Since the amount claimed by the applicant was BGN 4,000, by an order of 28 November 2002 the Supreme Court of Cassation discontinued the proceedings and the Plovdiv Regional Court's judgment became final.

B.  Relevant domestic law and practice

1.  The offences with which the applicant was charged

Article 203 § 1 of the CC, read in conjunction with Article 201, provides that the misappropriation of funds in large amounts by officials or managers is punishable by ten to thirty years' imprisonment.

Article 282 § 1 of the CC makes it an offence for a manager or an official to, inter alia, abuse his power or rights in order to provide a financial benefit to himself or another person, provided that this leads to non-negligible harmful consequences. The offence is punishable by up to five years' imprisonment or by compulsory labour.

2.  Provisions relating to pre-trial detention

(a)  Power to order pre-trial detention

At the relevant time and until the reform of the CCrP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator's decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court's judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999-II).

(b)  Legal criteria and practice regarding the requirements and justification for pre-trial detention

The legal grounds for detention pending trial are set out in Article 152 of the CCrP, the relevant part of which, as worded at the material time, provided as follows:

“1.  Pre-trial detention shall be imposed [in cases where the charges concern] a serious intentional offence.

2.  In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further offences. ...”

A “serious” offence is defined by Article 93 § 7 of the CC as one punishable by more than five years' imprisonment.

The Supreme Court has held that it was not open to the courts, when examining an appeal against pre-trial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.).

According to the Supreme Court's practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional crime be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).

(c)  Judicial review of detention before the trial

Article 152 § 5 of the CCrP, as in force at the material time, provided as follows:

“The detained person shall be provided immediately with a possibility to file an appeal with the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.”

3.  The State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“)

Section 1(1) of the Act provides:

“The State shall be liable for damage caused to private persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties.”

Compensation awarded under the Act comprises all pecuniary and non-pecuniary damages which are the direct and proximate result of the illegal act of omission (section 4 of the Act).

The person aggrieved has to file an “action ... against the bodies ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7 of the Act).

A prosecutor has to participate in the proceedings commenced under the Act (section 10(1) of the Act). According to the doctrine and the practice of the courts, when a prosecutor participates in civil proceedings, he or she acts as a State authority in defence of the rule of law, but assumes the role of a party to the proceedings. Thus, the prosecutor has the same rights and has to abide by the same procedural rules as the other parties to the case. In particular, he or she may adduce evidence, participate in oral argument, file appeals, etc.

Proceedings commenced under the Act are exempt from the initial payment of court fees (section 10(2) of the Act).

Persons seeking redress for damage acts or omissions falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).

4.  The Judicial Power Act of 1994 („Закон за съдебната власт“)

Section 27(1)(4) of the Judicial Power Act of 1994 provides that all judges, prosecutors and investigators are appointed, promoted, demoted and dismissed by the Supreme Judicial Council. The Council is a body consisting of twenty-five members (section 16(1) of the Act). The presidents of the Supreme Court of Cassation and the Supreme Administrative Court and the Chief Prosecutor are members as of right (section 16(2) of the Act). Eleven members are elected by the National Assembly (section 16(3) of the Act) and eleven are elected by all judges, prosecutors and investigators (section 17 of the Act).

The Minister of Justice chairs the meetings of the Council, but does not have the right to vote (section 26(1) of the Act).

Section 30(2) of the Act, as in force at the relevant time (at present section 30(4)), provided that the Minister of Justice could make proposals to the Supreme Judicial Council concerning the appointment, promotion, demotion and dismissal of all judges, prosecutors and investigators.

By section 171(2) of the Act, as in force at the relevant time (at present section 172(3)), the Minister of Justice could propose to the Supreme Judicial Council to open disciplinary proceedings against all judges, prosecutors and investigators. The proceedings are conducted by a special disciplinary panel of the Council (section 33 and of the Act).

At the Ministry of Justice there is an Inspectorate whose task is to audit the administrative processing of the case by the courts and the prosecution and the investigation authorities, and produce reports which are submitted to the Minister and the Supreme Judicial Council (section 35b (formerly section 35) of the Act).

5.  The Code of Civil Procedure (“the CCP”)

Article 217a (adopted in July 1999)

“1.  Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed.

2.  The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time.

3.  The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been lodged.

4.  In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”

COMPLAINTS

1.  The applicant complained under Article 5 § 1 (c) of the Convention that he had been unlawfully detained. In particular, at the time of his arrest the evidence against him had not been sufficient to lead to the conclusion that he had been guilty of an offence.

2.  The applicant complained under Article 5 § 3 of the Convention that he had not been brought before a judge or another judicial officer after his arrest.

3.  The applicant complained under Article 5 § 3 of the Convention that he had been kept in custody despite the lack of relevant and sufficient reasons justifying his detention.

4.  The applicant complained under Article 5 § 4 of the Convention that the appeal he had lodged against his detention with the Plovdiv Regional Court had not been examined.

5.  The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

6.  The applicant complained under Article 3 of the Convention about the conditions of his detention in the pre-trial detention centre.

7.  The applicant complained under Article 13 of the Convention about the lack of a possibility to obtain redress for the damage allegedly suffered during the detention. In his view, the length of the proceedings he had commenced under the State Responsibility for Damage Act and the constant efforts of the courts to hinder their normal course indicated that this was not an effective remedy.

8.  The applicant complained under Article 6 of the Convention about the fairness of the proceedings under the State Responsibility for Damage Act. In particular, he submitted that, since the Ministry of Justice was a defendant in them, the courts could not be considered as being independent and impartial. The courts' lack of independence and impartiality also stemmed from the participation of a prosecutor in the proceedings. The participation of a prosecutor had also infringed the principle of equality of arms. In addition, the applicant submitted that the fact that the court had denied some of his evidentiary motions and had refused to add the Ministry of Finance as a defendant had been indicative of the judge's personal bias.

9.  The applicant complained under Article 6 of the Convention about the length of the proceedings under the State Responsibility for Damage Act.

10.  Finally, the applicant submitted that he did not have at his disposal any effective remedies against the unreasonable length of the proceedings. He relied on Article 13 of the Convention.

THE LAW

1.  The Government submitted in general terms that the application had been lodged before all domestic remedies had been exhausted. However, they did not elaborate on this and did not specify in respect of which complaint the domestic remedies had not been exhausted and which were those remedies.

The Court reiterates that in the area of exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government to satisfy the Court that the remedy whose non-exhaustion is claimed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one capable of providing redress in respect of the applicant's complaints and that it offered reasonable prospects of success (see, as a recent authority, Rachevi v. Bulgaria, no. 47877/99, § 63, 23 September 2004).

In the instant case the Government did not specify in respect of which of the applicant's complaints domestic remedies had not been exhausted, did not identify which were the remedies which the applicant had allegedly failed to have recourse to and did not supply any information as to their availability and effectiveness.

In these circumstances, the Court cannot entertain the Government's objection.

2.  In respect of his complaint that his arrest had been unlawful and that there had existed no “reasonable suspicion” of him having committed an offence the applicant relied on Article 5 § 1 (c) of the Convention, which provides, as relevant:

“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; ...”

The Government did not comment on this complaint.

The applicant did not comment either.

In the light of all the material in its possession, the Court does not find any indication that the applicant's detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention. The Court considers that it was made in accordance with domestic law and fell within the ambit of Article 5 § 1 (c), having been effected for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed an offence.

As regards the presence or absence of a reasonable suspicion against the applicant at the time of his arrest, the Court emphasises that the reasonable suspicion test under Article 5 § 1 (c) requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed an offence, though what may be regarded as reasonable will depend on all the circumstances of the case. Facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge (see O'Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR 2001-X).

The Court notes that at the time when they ordered the applicant's arrest the prosecution and the investigation authorities apparently had information that he had misappropriated funds. They relied, inter alia, on the results of an audit by the state financial control authorities, on information from the trustee in bankruptcy of the company whose chairperson the applicant had been and on a memorandum from the economic police. The Court sees no reason to doubt that the suspicion against the applicant reached the level required by Article 5 § 1 (c) or that the purpose of his deprivation of liberty was to confirm or dispel that suspicion. Indeed, the aim of the applicant's questioning and the other investigative actions performed during his detention was to further the criminal investigation by way of confirming or dispelling the suspicion grounding his arrest.

In sum, the Court finds that the applicant's arrest was based on a “reasonable suspicion”, within the meaning of Article 5 § 1 (c) of the Convention, of him having committed an offence.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  In respect of his complaint that he had not been brought before a judge or another judicial officer after his arrest the applicant relied on Article 5 § 3 of the Convention, which provides, as relevant:

“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 submitted that after the CCrP had been amended in 1999, pre-trial detention was ordered by the competent first-instance court, after a public hearing in the presence of the prospective detainee and of his counsel. The court issued a decision forthwith and in case of an appeal, the hearing before the appellate court was scheduled not later than seven days after that. The basis for these amendments had been the Convention, which was directly applicable in Bulgaria.

The applicant submitted that he had been detained by an investigator and that his detention had been confirmed by a prosecutor, in accordance with the then applicable rules of the CCrP. Referring to the Court's judgments in the cases of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII) and Nikolova (cited above), the applicant submitted that neither the investigator, nor the prosecutor could be considered as “officer[s] authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention.

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.

4.  In respect of his complaint that he had been kept in custody despite the lack of relevant and sufficient reasons justifying his detention the applicant relied on Article 5 § 3 of the Convention, which provides, as relevant:

“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. ...”

The Government submitted that the applicant's detention had been imposed in accordance with the applicable rules of domestic law, namely Article 152 of the CCrP. The applicant had twice requested the prosecution authorities to release him. The first time they had refused to do so, providing convincing and sufficient reasons. The applicant's second request had been granted on 6 May 1997. This indicated that the authorities had fully respected his rights and had released him immediately after the need for his remaining in custody had disappeared. Moreover, while the applicant had been detained the authorities had proceeded with diligence in the case against him: they had questioned witnesses, had organised confrontations and had performed other investigative actions, all of which had taken place in the presence of the applicant's counsel., Stressing the complexity of the case, the Government concluded that the length of the applicant's detention had not exceeded a “reasonable time”, within the meaning of Article 5 § 3 of the Convention.

The applicant submitted that at the time of his arrest he had had a permanent residence, an established business, a family and social contacts. There had been no indication that he would abscond, commit an offence or impede the course of justice. Moreover, he had returned from the United States of America knowing that criminal proceedings had been opened against him. At the time of his arrest there had existed no relevant and sufficient reasons for his placing in custody other than the reasonable suspicion that he had committed an offence. The lack of such reasons was apparent from the reasoning of the prosecution authorities which had denied his requests for release. In particular, the Chief Prosecutor's Office had been very laconic and had expressly relied on Article 152 of the CCrP. The applicant's second request for release had not been examined by the competent court and by the prosecution authorities. Referring to the Court's judgments in the cases of Nikolov v. Bulgaria (no. 38884/97, 30 January 2003) and Shishkov v. Bulgaria (no. 38822/97, 9 January 2003), the applicant concluded that his detention had not been justified. It was therefore unnecessary to examine whether the authorities had acted diligently in the case against him.

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.

5.  In respect of his complaint that the appeal he had lodged against his detention with the Plovdiv Regional Court had not been examined the applicant relied on Article 5 § 4 of the Convention, which provides:

“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 submitted that the applicant had the possibility of appealing against his detention to a court under Article 152 § 5 of the CCrP. However, the applicant had never tried such an appeal. He had submitted only requests for release to the prosecution authorities.

The applicant submitted that during the relevant time he could make both requests for release to the prosecution authorities and appeals against his detention to a court. However, although both were similar, the requests to the prosecution authorities stood a better chance to succeed. The requests to the prosecution authorities could be multiple, whereas the appeal to the court could only be lodged once.

The applicant further submitted that none of the two procedures for challenging his detention had complied with the requirements of Article 5 § 4. This was due to the fact that in both the reviewing bodies were bound by the rule of Article 152 § 1 of the CCrP and the case-law of the Supreme Court making detention mandatory, barring certain exceptional circumstances. This had been established by the Court in its judgment in the case of Nikolova (cited above). The main issue was the restricted scope of the review of the justification for the detention. Another flaw characterising both remedies was the lack of a public hearing and of equality of arms.

Finally, the applicant submitted that he had not had access to a real habeas corpus procedure because the Plovdiv Regional Court had not ruled on his appeal lodged on 24 April 1997.

The Court notes that the Government submit that the applicant did not file an appeal against his detention with the Plovdiv Regional Court. It further notes that the applicant disputes this and produces a copy of his appeal to the Plovdiv Regional Court bearing a dated stamp and a signature of a clerk. However, having regard to its conclusion below, the Court does not consider that it has to rule on this disputed issue of fact and proceeds on the assumption that the applicant indeed filed an appeal on 24 April 1997.

The Court notes that the authorities had put an end to the applicant's detention on 6 May 1997, such that the applicant remained in custody for approximately twelve days after his appeal to the Plovdiv Regional Court was made. This period does not appear excessive (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, p. 22, § 56, and Touroude v. France (dec.), no. 35502/97, 3 October 2000). The Court therefore considers that in the circumstances of the case the applicant could be said to have been released speedily after the lodging of his appeal. It is not for the Court to conjecture as to whether, had this not been so, the domestic court would have in fact provided review satisfying the requirements of Article 5 § 4 (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 20, § 45, and M.A. and M.M. v. France (dec.), no. 39671/98, ECHR 1999-VIII).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6.  In respect of his complaint that the criminal proceedings against him had lasted unreasonably long the applicant relied on Article 6 § 1 of the Convention, which 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...”

The Government submitted that the investigation had been delayed and had eventually been stayed due to the absence of two material witnesses, the first of which had absconded abroad and the second of which was a foreigner. Their whereabouts were unknown despite the consistent efforts of the authorities to locate them. In view of these circumstances, the length of the proceedings against the applicant could not be considered unreasonable.

The applicant submitted that there had been a certain activity in the proceedings until the middle of 1997. After that the proceedings had virtually grinded to a halt until July 2001, when they had been stayed. At present the proceedings were still stayed and there were no reasonable prospects of their speedy finalisation. The Government's averment that the length of the proceedings was warranted because of the absence of two witnesses was unconvincing. They had failed to explain why these two witnesses were so important for the case and had not provided evidence establishing that any efforts had been made to locate them.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

7.  In respect of his complaint about the conditions of his detention at the pre-trial detention facility the applicant relied on Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that while the sanitary and hygienic conditions in the detention facility where the applicant had been kept had not been satisfactory, they had not been harsh and unbearable to the point of constituting inhuman and degrading treatment. In a similar case, Assenov and Others (cited above), the Court had held that the eleven-month stay of a minor in comparable conditions had not reached the threshold of severity required by Article 3 of the Convention. In his statement of claim submitted to the Plovdiv District Court the applicant had conceded that he personally had not been subject to humiliating treatment on the part of the authorities. The applicant had also been allowed to receive additional food and books from the outside. The Government further submitted that the conditions in all detention facilities had been significantly improved in 1999.

The applicant submitted that the cell in which he had been kept had measured 20 twenty square meters. It did not have a window and was not equipped with toilet facilities. He was allowed to go to the toilet twice a day. During the remaining time he had to use a bucket, which was emptied twice a day. He did not have access to sunlight and fresh air. A number of detainees kept at the facility had fallen ill with tuberculosis or hepatitis. Parasites and gastric diseases were also common. Concerning the Government's averment that in 1999 the conditions had been improved, the applicant submitted that this was far from being true. In any event, this was irrelevant, because the applicant had been detained in 1996-97. The conditions during that period had been described as inhuman and degrading by the Plovdiv Court of Appeals. The findings of the CPT in its reports of 1995 and 1999 were also highly relevant and informative.

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.

8.  In respect of his complaint about the lack of a possibility to obtain redress for the alleged breach of Article 3 of the Convention the applicant relied on Article 13 of the Convention, which 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 Government submitted that the applicant's action had been rejected as unsubstantiated, because despite the numerous opportunities provided by the domestic courts he had failed to produce evidence about the allegedly detrimental effects of the conditions of detention on him personally. This had been the reason why the Plovdiv Regional Court had remarked that the applicant had tendentiously failed to act in order to ensure compliance with the admissibility conditions for lodging an application with the European Court of Human Rights.

The applicant submitted that the reason why his action had been rejected as unsubstantiated had been the refusals of the courts to carry out an on-the-spot inspection of the detention facility and to question the director of the National Investigation Service. On the other hand, the administration of the detention facility had refused the experts access to it, thereby hampering the establishment of the conditions in it, which were the basis of the applicant's action. The possibility to prove the impact of these conditions on the applicant had therefore become pointless. For this reason he had not brought witnesses, hoping that the Supreme Court of Cassation would consider the refusals of the courts below to order an inspection and an expert report serious breaches of the rules of procedure and remit the case. However, because of the legislative changes in November 2002 the proceedings before the Supreme Court of Cassation had been discontinued, thus depriving him of this possibility. In the applicant's view, the particular requirements of the State Responsibility for Damage Act, coupled with the stance of the courts and the impossibility to have an appeal on points of law examined by the Supreme Court of Cassation had rendered the action under the Act an ineffective remedy against the alleged violation of Article 3 of the Convention. On the other hand, it was not open to the applicant to make a claim under the general tort law, because of the rule of section 8 of the Act.

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.

9.  In respect of his complaint about the fairness of the proceedings under the State Responsibility for Damage Act the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”

The Government did not comment on this complaint.

The applicant submitted that the proceedings had not been fair. The courts had made constant efforts to jeopardise the establishment of the facts of the case by refusing to admit relevant evidence and had refused to constitute the Ministry of Finance as a defendant. The naming of the defendants was the plaintiff's prerogative; moreover, the courts' refusal could have a fatal impact on the outcome of the proceedings because of the lack of clarity as to the entity responsible for the detention facilities after the liquidation of the National Investigation Service.

The applicant also argued that the Plovdiv District Court had showed bias by attempting twice to discontinue the proceedings on completely arbitrary grounds.

The applicant further submitted that the courts were dependent on one of the defendants in the proceedings, the Ministry of Justice, in view of the fact that the Minister of Justice had the power to make proposals to the Supreme Judicial Council concerning the number of judges and prosecutors in the country, the appointment, promotion, demotion and dismissal of judges and prosecutors and the opening of disciplinary proceedings against them. Furthermore, the Inspectorate at the Ministry of Justice had the power to inspect the processing of cases by the courts and make reports about that. There existed therefore legitimate doubts about the impartiality and independence of the courts trying the action against the Ministry of Justice and of the prosecutor participating in the proceedings.

Finally, the applicant argued that the mandatory participation of a prosecutor in the proceedings under the State Responsibility for Damage Act had infringed the principle of equality of arms. Since the basis of the applicant's action was his detention, which had been ordered by the prosecution authorities, the prosecutor had a strong interest in having the action dismissed. Even though the prosecutor's requests and opinions were not binding on the courts trying the action, the mere fact that he participated in the proceedings infringed the balance between the parties.

Insofar as the applicant's complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the case at hand the domestic courts delivered reasoned judgments in which they explained why they had reached their findings of fact and their conclusions in law.

As regards the courts' refusals to admit certain pieces of evidence requested by the applicant, the Court, noting that only exceptional circumstances would prompt it to conclude that a decision not to admit evidence was incompatible with Article 6 of the Convention, does not find that such circumstances existed in the present case.

Nor does it seem that the refusal to constitute the Ministry of Finance as a defendant had any impact on the fairness of the proceedings by prejudging their outcome. The Court notes in particular that the applicant's action was dismissed on completely different grounds and that the courts did not at any point question that in principle the Ministry of Justice, as a successor of the National Investigation Service concerning the management of the pre-trial detention facilities, could be held liable for the conditions in these facilities.

As regards the Plovdiv District Court's two attempts to discontinue the proceedings, the Court notes that on both occasions the applicant appealed and the Plovdiv Regional Court quashed the decisions to discontinue and remitted the case for further examination.

Concerning the alleged lack of independence and impartiality of the Plovdiv District Court and the Plovdiv Regional Court, the Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.

As to the question of “impartiality”, there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73, and Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).

Concerning subjective bias, the personal impartiality of a judge must be presumed until there is proof to the contrary. On the basis of the material in its possession, the Court does not find that the judges examining the applicant's action were biased. In particular, as regards the Plovdiv District Court's decisions to discontinue the proceedings, there is no indication that these decisions were influenced by improper motives. It is not for this Court to examine whether the domestic court made an error of law or fact in issuing them.

As regards independence and objective impartiality, the Court considers that these concepts are closely linked and will consider them together as they relate to the present case.

Concerning the fact that the Minister of Justice has power to make proposals to the Supreme Judicial Council in respect of the careers of the judges, the Court does not consider that this alone establishes that they are not independent of the executive (see Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, p. 40, § 79) Moreover, in many Contracting States it is the executive which appoints judges and that does not cast doubt on their independence (see Belilos v. Switzerland, judgment of 29 April 1988, Series A no. 132, p. 29, § 66). Concerning the fact that the Minister may propose the opening of disciplinary proceedings against a judge, the Court notes that the Minister's role stops there; the decision to open and to conduct such proceedings is within the powers of the Supreme Judicial Council, which is a body independent of the executive. Nor does it seem that the Inspectorate at the Ministry of Justice has any formal powers in respect of the judiciary, so as to jeopardise its independence.

There is therefore no reason to hold that the courts trying the applicant's action were not independent or impartial.

Concerning the participation of a prosecutor in the proceedings, the Court recalls that in the case of Todorov v. Bulgaria ((dec.), no. 39832/98, 14 March 2002) it examined an identical complaint and found that, given the practical role played by the prosecutor, there was no reason to hold that his or her participation as a “special party” in the proceedings under the State Responsibility for Damage Act infringes the principle of equality of arms. It finds no reason to depart from its holding.

As regards the alleged bias of the prosecutor, the Court recalls that the guarantees of impendence and impartiality under Article 6 of the Convention concern solely the courts and do not apply to the prosecution authorities, which are, as in the case at hand, mere parties to a contentious judicial proceeding (see Rezzonico v. Italy (dec.), no. 43490/98, 15 November 2001).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

10.  In respect of his complaint about the length of the proceedings under the State Responsibility for Damage Act the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted that the reasons for the delay in the examination of the applicant's action were mainly objective circumstances for which the authorities could not be held liable. Changes in the legislation had made necessary the replacing of the defendant. Several hearings had had to be adjourned because of faulty summoning of the parties. The reform of the judicial system in 1997-98 had also been an objective fact, the impact of which could not be discounted. The authorities had acted diligently and with a view to disposing of the action within a due time. The intervals between hearings had been minimal and the proceedings had been adjourned because of the need to gather relevant evidence. The two judgments had also been delivered promptly.

The applicant was of the view that the proceedings had exceeded a reasonable time. In particular, the first hearing had been held more than three months after the institution of the proceedings. The arbitrary re-qualification of the action as one under the general tort law, made by the Plovdiv District Court on 23 January 1998, had unduly delayed the proceedings until 2 November 1998. The adjourning of the case on 4 February 1999, which had occurred because of the absence of the prosecutor, had led to a further delay of fifty-five days. The second, completely unwarranted attempt of the Plovdiv District Court to discontinue the proceedings had occasioned a further delay of eleven months. The delay in the examination of the “complaint about delays” by the chairperson of the Plovdiv Regional Court had caused the adjourning of the hearing listed for 8 May 2000. The Plovdiv Regional Court had taken more than six months to hold a hearing pursuant to the applicant's appeal. Likewise, the Supreme Court of Cassation had listed a hearing for more than fourteen months after the lodging of the appeal on points of law.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

11.  In respect of his complaint about the lack of effective remedies against the unreasonable length of the proceedings under the State Responsibility for Damage Act the applicant relied on Article 13 of the Convention, which 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 Government submitted that the Plovdiv Regional Court had duly examined the applicant's complaint about delays under Article 217a of the CCP and had considered it unfounded.

The applicant submitted that the only remedy against excessively lengthy civil proceedings was the “complaint about delays” introduced in 1999. In his view, however, it was not effective, because it could not lead to the acceleration of the proceedings or to compensation for their excessive length. The only possible consequence was the opening of disciplinary proceedings against the judge concerned. However, thus far no judge had been disciplined under this provision.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints that after his arrest he was not brought before a judge or a judicial officer (Article 5 § 3), that his pre-trial detention was unjustified and excessively lengthy (Article 5 § 3), that the criminal proceedings against him exceeded a reasonable time (Article 6 § 1), that the conditions of his detention were inhuman and degrading (Article 3) and that there were no effective remedies in this respect (Article 13), and that the proceedings under the State Responsibility for Damage Act exceeded a reasonable time (Article 6 § 1) and that there were no effective remedies in this respect (Article 13);

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

1.  Equivalent to 4,000 new Bulgarian levs (BGN).


IOVCHEV v. BULGARIA DECISION


IOVCHEV v. BULGARIA DECISION