AS TO THE ADMISSIBILITY OF
Application no. 48737/99
by Roman Nikolaevich CHOBAN
The European Court of Human Rights (First Section), sitting on 23 June 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs S. Botoucharova,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 14 October 1998,
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 regard to the comments submitted by the Ukrainian Government,
Having deliberated, decides as follows:
The applicant, Mr Roman Nikolaevich Choban, is a Ukrainian national who was born in 1958 and lives in Mamaevtsi, the Chernivtsi Region, Ukraine. The applicant is represented by Mr S. Goncharenko, a lawyer practising in Kiev, Ukraine. The Bulgarian Government are represented by Ms M. Kotzeva, co-agent, of the Ministry of Justice. The Ukrainian Government, who participate in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), are represented by their Agent, Ms Z. Bortnovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The events of 10 January 1995
At about 6 a.m. on 10 January 1995 the applicant, Mr Vasilii Savchuk and Mr Viktor Savchuk, Ukrainian nationals on their way from Ukraine to Turkey, crossed the Bulgarian border at Rouse, on the Danube river. They were carrying large amounts of cash, because they intended to purchase goods in Istanbul and resell them in Ukraine. The applicant submits that they declared the money to the customs authorities as follows: Mr Vasilii Savchuk – 29,500 United States dollars (USD), the applicant – USD 13,017, and Mr Viktor Savchuk – nil. However, it seems that later only one customs declaration was found, in which Mr Vasilii Savchuk had declared USD 29,500. The applicant further submits that after the three got out of the customs he gave USD 2,460 to Mr Vasilii Savchuk as prepayment for the transportation costs of the goods they intended to buy in Turkey and USD 1,240 to Mr Viktor Savchuk as prepayment for his help for the purchasing of the goods. After that the three hid all the money in the minibus in which they were travelling.
Two hours later, at about 8 a.m., when the three were approximately eighty kilometres south of Rouse, near Veliko Tarnovo, an armed gang, some of which were dressed as police officers, stopped the minibus, pretending to carry out a routine police check. They hit Mr Vasilii Savchuk several times in the head and, after he tried to run, shot him dead. Mr Viktor Savchuk was also hit several times in the head. The applicant was shot in the thigh and later hit in the head. The applicant submits that the robbers pulled a bag hanging around his neck and took it away. According to him, his copy of the customs declaration in which he had declared the USD 13,017 at the Rouse Customs was in that bag. The robbers were not able to find the money hidden in the minibus and left the scene. The police arrived approximately half an hour later and the applicant and Mr Viktor Savchuk were taken to a hospital. Later they returned to Ukraine.
2. The seizing of the money and its subsequent confiscation
A criminal investigation was opened into the incident. On 12 January 1995 an investigator searched the minibus in the presence of the applicant, an expert and two certifying witnesses, and seized the money which was hidden there as evidence in the pending criminal proceedings against the alleged robbers. The total amount found was USD 42,517. According to the declarations of the applicant and Mr Viktor Savchuk, it broke down as follows: USD 31,960 belonging to the deceased Mr Vasilii Savchuk, USD 1,240 belonging to Mr Viktor Savchuk, and USD 9,317 belonging to the applicant. The investigator drew up a record which was signed by himself, the applicant, Mr Viktor Savchuk and two certifying witnesses.
The applicant submits that when he was released from hospital several weeks later, he requested the investigator to return the money. However, the investigator refused, stating that applicant had imported the money into Bulgaria without declaring them at the border, because the applicant's customs declaration was missing.
On an unspecified date in February or March 1995 the applicant, Mr Viktor Savchuk and Mr Vasilii Savchuk's widow requested from the Veliko Tarnovo Regional Prosecutor's Office, which was supervising the investigation, to return the money seized as evidence. In a decree of 29 March 1995 that Office refused. Their lawyer appealed to the Chief Prosecutor's Office. In a decree of 31 March 1995 the Chief Prosecutor's Office ordered that USD 29,500 be handed over to Mr Vasilii Savchuk's widow, because there was no doubt about their owner and about the fact that they had been duly declared upon Mr Vasilii Savchuk's entry in Bulgaria. It found that the remaining USD 13,017 could not be returned, because the money had been hidden in the minibus and there was no declaration for its importing. On the one hand, this made it impossible to determine who was its owner, and, on the other, whether it had been declared upon entry in Bulgaria, as required by the Regulation on Importing and Exporting of Currency Valuables of 1994, which made it an administrative offence to not declare currency at the border. The prosecution authorities were not competent to rule on this matter and therefore the currency was to be turned over to the Rouse Customs. A copy of the decree was sent to the lawyer who was representing the applicant and Mr Vasilii Savchuk's widow in the criminal proceedings against the alleged robbers. From the applicant's submissions it transpires that he was made aware of that decree.
Pursuant to that decree, in August 1995 the Regional Investigation Service in Veliko Tarnovo turned the money over to the Rouse Customs.
Apparently thereafter the customs authorities opened proceedings against the applicant for having failed to declare the money at the border, as required by section 36 of the Currency Transactions and Currency Control Act of 1969 (“the CTCCA”), and as a result the money was forfeited by a decision of 19 February 1996. It is unclear whether the applicant was notified about the proceedings. He did not seek judicial review of the decision of 19 February 1996. The file containing all documents relating to these proceedings was destroyed on 21 October 2003, because of the expiry of the time-limit for its archiving at the Rouse Customs.
3. The criminal proceedings against the alleged robbers
Approximately ten days after the incident of 10 February 1995 most of the alleged attackers who had robbed the applicant, Mr Vasilii Savchuk and Mr Viktor Savchuk were identified and arrested. They were charged with having committed numerous armed robberies during the period 1994-95.
The investigation was completed in August 1995 and in October 1995 an indictment was submitted to the Veliko Tarnovo Regional Court against twelve persons.
The Veliko Tarnovo Regional Court held hearings on 11 December 1995, 3-10 January, 3-5 June and 2-12 September 1996. The applicant did not appear in person, but was represented by a lawyer retained by him and Mr Viktor Savchuk. Numerous witnesses and expert witnesses were heard and other evidence admitted.
On an unspecified date during the preliminary investigation or at the first hearing on 11 December 1995 the applicant made a civil claim against the accused, claiming non-pecuniary damages.
In a judgment of 12 September 1996 the Veliko Tarnovo Regional Court found all twelve accused guilty of numerous robberies and related offences and sentenced them to various terms of imprisonment. It rejected the applicant's claim.
The prosecution appealed to the Supreme Court. So did all but one of the accused. On 19 September 1996 the applicant's and Mr Viktor Savchuk's lawyer also appealed, arguing, inter alia, that the applicant's claim had been improperly rejected.
The Supreme Court held hearings on 14 February, 25 April and 27 June 1997.
In 1998 the judicial system in Bulgaria was reformed. As a result, on 1 April 1998 the case was transferred to the newly created Veliko Tarnovo Court of Appeals, which had henceforth jurisdiction to hear appeals against judgments of the Veliko Tarnovo Regional Court.
A hearing listed for 11 January 1999 failed to take place, because the applicant and Mr Viktor Savchuk had not been duly summoned.
A hearing took place on 8 February 1999. The applicant, who had been duly summoned for it by letter rogatory, did not show up. He notified the court by telex that he did not wish to pursue the appeal. Accordingly, the court discontinued the proceedings relating to the applicant's civil claim. Its decision was not subject to appeal.
On 9 February 1999 the Veliko Tarnovo Court of Appeals quashed the Veliko Tarnovo Regional Court's judgment, noting that two of the accused had been represented at the preliminary investigation stage by the same lawyer despite an obvious conflict of interest. In the court's view, that fact had vitiated the entire procedure and warranted the remitting the case to the preliminary investigation stage.
The proceedings are still pending. For a more detailed account of their unfolding after 9 February 1999 see Vasilev v. Bulgaria ((dec.), no. 59913/00, 14 December 2004).
4. Alleged attempts by the applicant to obtain the returning of the money
The applicant avers that in 1995-99 he wrote letters requesting the returning of the money to the Rouse Customs, the Veliko Tarnovo Regional Court, the Veliko Tarnovo Regional Prosecutor's Office and the Supreme Court. He further avers that he received no reply. However, he does not provide any evidence to corroborate these averments.
The applicant submits that in 1995-96 he travelled seven times to Bulgaria to give evidence in the criminal proceedings against the alleged robbers. It does not seem that on any of these occasions he inquired about what had become of the money at the Rouse Customs.
On 24 April and 23 September 1997 and 19 November 1998 the Ministry of Justice of Ukraine, acting pursuant to requests by the applicant, sent letters to the Ministry of Justice of Bulgaria, inquiring why the applicant's money had not been returned to him.
In a letter of 4 March 1998, which was sent to the Ministry of Justice of Bulgaria and apparently later transmitted to the Ukrainian authorities, the Bulgarian Supreme Court of Cassation stated, inter alia, that the USD 13,017 had not been returned to the applicant by the authorities dealing with the criminal case, because it was unclear who its owner was, and because it had not been declared upon the applicant's entry in Bulgaria and could have been the object of a customs offence. This was apparent from the Chief Prosecutor's Office's decree of 31 March 1995. A copy of the decree was enclosed.
The applicant avers that he also contacted various other bodies in Ukraine. In particular, he addressed the Ministry of Foreign Affairs, which in turn contacted the Bulgarian embassy in Kiev. However, he does not provide any evidence to corroborate this averment.
B. Relevant domestic law
1. Seizing of chattels and money as evidence in criminal proceedings
Article 108 § 1 of the Code of Criminal Procedure provides that a piece of physical evidence seized in the context of criminal proceedings is held by the authorities until the conclusion of the proceedings. Paragraph 2 of that Article provides that items seized as evidence may be returned to their owners prior to the conclusion of the proceedings only if this would not hamper the elucidation of the facts of the case.
2. Administrative offences with regard to the declaring of currency at the border
Section 36 of the CTCCA, as in force at the material time, provided that the importing and exporting of foreign currency was to be effected in a manner specified by the Council of Ministers and the Bulgarian National Bank. Section 7 of the Regulation on the Importing and Exporting of Currency Valuables of 1994, made by the Council of Ministers and the Bulgarian National Bank pursuant to section 36 of the CTCCA, as in force at the relevant time, provided that foreign currency, whose value was above USD 1,000 and which was carried by persons crossing the border, had to be declared to the customs authorities. Any failure of abide by the provisions of the Regulation constituted an administrative offence (section 11 of the Regulation and section 37 of the CTCCA).
The Administrative Offences and Penalties Act of 1969 (“the AOPA”) defines administrative offences and penalties and governs the procedure for punishing such offences. The possible penalties are a reprimand, a fine, or occupational disbarment (section 13 of the AOPA). In addition, the things which constitute the object of an offence may be forfeited if they belong to the offender and if the respective statute so provides (section 20(3) of the AOPA).
The authority competent to impose an administrative penalty is the administrative body which is responsible for the enforcement of the statute or the statutory instrument defining the offence, or the administrative body expressly authorised to do so under the respective statute or statutory instrument (section 47(1) and (2) of the AOPA). The proceedings start with the drawing up of a report, a copy of which has to be served on the alleged offender, who has the right to comment on it (sections 43(4), 44(1) and 52(2) of the AOPA). A copy of the decision imposing an administrative penalty must likewise be served on the offender (section 58(1) of the AOPA). If the offender cannot be found at the address specified by him and his new address is unknown, a note to this effect is made on the decision and it is deemed served as of the date of the note (section 58(2) of the AOPA). The decision is subject to appeal before the competent district court (section 59(1) of the AOPA) within seven days after it has been served on the offender (section 59(2) of the AOPA). The court may affirm, vary or quash the decision (section 63(1) of the AOPA).
1. The applicant complained that for many years the Bulgarian authorities have deprived him of the use of the money seized by the investigator on 12 January 1995. He relied on Article 1 of Protocol No. 1 and Article 8 of the Convention.
2. The applicant complained under Article 13 of the Convention that he had had no effective remedies against the violation alleged above.
3. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against the persons who allegedly robbed him, in which he had participated as a civil claimant, had lasted unreasonably long.
1. The Court considers that the applicant's complaint about the withholding of the money seized by the investigator falls to be examined under Article 1 of Protocol No. 1, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The respondent Government firstly submitted that the applicant had failed to exhaust domestic remedies. After the decree of 31 March 1995 of the Chief Prosecutor's Office the applicant's money had been turned over to the customs authorities. A copy of this decree, which clearly indicated that the amount was to be handed to the customs, had been sent to the lawyer representing the applicant in the criminal proceedings against the alleged robbers. However, that lawyer had not undertaken any action in that respect. He had not contacted the customs and had not defended the applicant's interest in the proceedings in which the money had been forfeited. Due to the fact that the case file had been destroyed in 2003, it was impossible to ascertain how the proceedings before the customs had unfolded. However, it was clear that the applicant could have appealed against the decision for the confiscation of the money.
The applicant acknowledged that he had not sought judicial review of the decision confiscating the money, which was in principle a remedy which needed to be made use of. However, he submitted that the respondent Government had not put forward any proof that he had been properly notified of this decision. His lawyer had not been notified of the proceedings before the customs either, only that the money had been turned over to them. The applicant had not been personally notified by the authorities about that. Moreover, the applicant's lawyer had been authorised only to represent him in the criminal proceedings against the alleged robbers, not to act on his behalf in all his other dealings with the Bulgarian authorities.
The Ukrainian Government accepted that in principle an appeal against the decision forfeiting the money was an effective remedy which needed to be availed of. They further agreed that after the destruction of the case file due to the expiry of the time-limit for its conservation it was impossible to definitively ascertain whether the applicant had been notified of the proceedings before the customs authorities and of the decision confiscating the money. However, they argued that from the letters sent by the Ukrainian Ministry of Justice to the Bulgarian Ministry of Justice on 24 April and 23 September 1997 and the letter of the Bulgarian Supreme Court of Cassation of 4 March 1998 it was clear that the applicant had not been notified of the decision to forfeit his money and could thus not have appealed against it.
The Court starts by noting that all parties are in agreement that in principle the possibility to appeal to the competent district court against the customs authorities' decision to forfeit allegedly smuggled money is an adequate and sufficient remedy which needs to be availed of. It sees no reason to hold otherwise.
By contrast, the parties are in dispute as to whether this remedy was effective in the particular circumstances of the case, because, due to the destruction of the customs' case file in October 2003, it is impossible to ascertain whether the applicant was notified of the proceedings for forfeiting the money and of the decision of 19 February 1996. The Court, for its part, must determine whether, having regard to the totality of the circumstances, the applicant did everything that could reasonably be expected of him in order to exhaust domestic remedies (see, as a recent authority, Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004). In this connection, the Court reiterates that the rule of exhaustion of domestic remedies is not capable of being applied automatically; in reviewing whether it has been observed, it is essential to have regard to the facts of the individual case (ibid.).
The Court notes that the applicant was represented by a lawyer in the criminal proceedings against the alleged robbers. This lawyer made an application on behalf of the applicant for the return of the money seized as evidence in the course of these proceedings and, when it was rejected, appealed to the Chief Prosecutor's Office against the refusal. A copy of the Chief Prosecutor's Office's decree of 31 March 1995, in which it also refused to return USD 13,017 to the applicant, was sent to that lawyer. It seems that the applicant was apprised of the said decree, from which it clearly transpired that the money would be turned over to the Rouse Customs, which was to determine whether it had been duly declared at the border or not, and whether it was thus liable to forfeiture. Even supposing however that the applicant was not informed of the decree owing to the negligence of his lawyer, the respondent State may not be held liable for that (see, mutatis mutandis, W. v. Switzerland, no. 9022/80, Commission decision of 13 July 1983, Decisions and Reports (DR) 33, p. 21, at p. 36).
It is true that later, in 1997 and 1998, the Bulgarian Ministry of Justice and Supreme Court of Cassation did not inform the applicant, who acted through the Ukrainian authorities, about the proceedings before the customs' authorities and the decision to forfeit the money. However, it would be excessive to hold that these bodies, which are completely separate from the customs, both organisationally and institutionally, were under an obligation to make inquiries on behalf of the applicant and verify what had become of the money after it had been handed to the customs. In this connection, the Court reiterates that in order to exhaust domestic remedies an applicant must, as a minimum, approach the appropriate domestic bodies (see Henaf v. France, no. 65436/01, § 30, ECHR 2003-XI). However, from the materials in the case file it does not appear that, after being apprised, through his lawyer, that the money was turned over to the customs authorities, which were indisputably competent to decide what to do with it, the applicant contacted them either personally or through a lawyer retained by him. While not disregarding the fact that, being a foreigner resident abroad, the applicant was faced with certain practical difficulties, the Court does not consider that they were such as to preclude him from contacting directly the customs' authorities and protecting his interests. In this connection, it is noteworthy that the applicant found no difficulty in getting in touch with the criminal courts examining his civil claim. Insofar as the applicant may be taken to submit that he awaited the returning of the money form the authorities dealing with the criminal case against the alleged robbers because he was under the erroneous impression that the fate of the money was to be determined in these proceedings, the Court recalls that lack of legal knowledge is not a ground of exemption from the duty to exhaust domestic remedies (see X. v. the United Kingdom, no. 6840/74, Commission decision of 12 May 1977, DR 10, p. 5, and Stewart v. the United Kingdom (dec.), no. 25185/02, 16 December 2003).
In these circumstances, the Court concludes that the applicant did not do all that could reasonably be expected of him to obtain redress for his grievance at the domestic level.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. In respect of his complaint about the lack of remedies against the alleged violation of Article 1 of Protocol No. 1 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 respondent Government did not comment.
The applicant submitted that, as he had not been informed of the decision to confiscate his money and could hence not appeal against it, he did not have effective remedies.
The Ukrainian Government did not comment.
The Court found above that the applicant had failed to make proper use of the remedies available under Bulgarian law.
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 about the length of the criminal proceedings 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 respondent Government firstly submitted that the applicant had no interest in pursuing the complaint, because he had withdrawn his appeal against the judgment of the first-instance court. In the alternative, they argued that the proceedings had not exceeded a reasonable time. The case had been extremely complex, which was evidenced by the facts that the trial court's judgment ran to thirty-five pages and the materials in the case file were contained in seventeen binders. Most of the delays, which had been kept to a minimum, had been due to this complexity.
The applicant submitted that the withdrawing of his appeal was in no way indicative of his lack of interest to pursue his complaint. He argued that overall length of the proceedings had been unreasonable. In his view, the case was not complicated as regards his civil claim. The remitting of the case to the preliminary investigation phase by the court of appeals had been necessary because of the poor quality of the original investigation. The reform of the judicial system had been another source of unjustified delay.
The Ukrainian Government submitted that the period to be taken into consideration ran from the opening of the proceedings until present, because, even after withdrawing his appeal, the applicant had maintained an interest in having the criminal proceedings concluded within a reasonable time. They conceded that the first-instance proceedings had been prompt, but submitted that there had been unjustified delays in the appeal proceedings, on account of the reform of the judicial system and on account of the remitting of the case by the court of appeals.
The Court notes at the outset that none of the parties disputed that Article 6 § 1 was applicable to the proceedings under its civil limb. Having regard to the fact that the applicant brought a civil claim for damages against the accused, it sees no reason to hold otherwise (see Perez v. France [GC], no. 47287/99, §§ 66-71 and 74, ECHR 2004-I).
The Court further notes that the applicant withdrew his appeal against the first-instance judgment rejecting his claim. This raises the question whether by doing so he waived his right to claim reparation for the damage caused by the offence of which he was allegedly the victim (see Perez, cited above, §§ 70 and 74, and, mutatis mutandis, Garimpo v. Portugal (dec.), no. 66752/01, 10 June 2004). However, the Court need not decide this issue, because the complaint is in any event manifestly ill-founded for the reasons which follow.
The proceedings were instituted on 10 January 1995. The applicant submitted his civil claim for damages on an unspecified date after that and before 11 December 1995, when the trial started. In the circumstances, the Court will proceed on the assumption that the starting date of the period to be taken into consideration was 10 January 1995.
In a decision of 8 February 1999 the court of appeals discontinued the proceedings relating to the applicant's civil claim, because he had withdrawn his appeal against the first-instance judgment. Therefore, after this date the proceedings no longer concerned the applicant's civil rights, but only the criminal responsibility of the accused (see, mutatis mutandis, Perez, § 70, and Garimpo, both cited above). The Court is thus of the view that the period to be taken into consideration came to an end on 8 February 1999.
The overall length of the period to be considered was thus approximately four years and one month.
The reasonableness of the length of this period is to be determined with reference to the criteria laid down in the Court's case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment.
The case appears very complex: it involved twelve accused whose combined criminal activity had allegedly spanned over a year. It should also be noted that the charges related to very serious crimes (robberies, murder, bodily injuries etc.), which additionally complicated the work of the authorities. They had to take the statements of numerous witnesses, order many expert reports, and gather other evidence.
Having regard to, in particular, the complexity of the case, the Court does not consider that the preliminary investigation and the proceedings before the first-instance court and the Supreme Court were excessively lengthy. By contrast, a gap may be observed between 1 April 1998, when the appeal proceedings had to start anew because of the reform of the judicial system, and 8 February 1999, when the court of appeals discontinued the proceedings relating to the applicant's civil claim. However, the Court does not find that this period, when viewed in the context of the period to be taken into consideration as a whole and given the indisputable complexity of the case, had such an impact on the overall length of the proceedings as to make them exceed what was reasonable. The Court thus finds that there is no appearance of a violation of the reasonable time requirement of Article 6 § 1 in respect of the period to be taken into consideration in the present case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
CHOBAN v. BULGARIA DECISION
CHOBAN v. BULGARIA DECISION