FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49163/99 
by Lyubima Kostadinova KALPACHKA 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 19 May 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 26 May 1999,

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, Ms Lyubima Kostadinova Kalpachka, is a Bulgarian national who was born in 1965 and lives in Blagoevgrad. She is represented before the Court by Mr V. Vassilev, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Kotzeva, 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.

During the relevant period (1993-96) the applicant worked as a journalist for Struma, a local newspaper based in Blagoevgrad, reporting on the work of law-enforcement agencies and investigating crime-related stories. On 16 December 1996 the term of her contract expired and her employment was terminated.

1.  The 1994-2000 criminal proceedings against the applicant

On 18 August 1994 the applicant was at the Struma staff premises, taking phone calls and interviewing people who came to the newspaper with various informations. During the day a man and his son came to the newspaper's office and related to the applicant that the manager of a schoolchildren's summer camp, Mr P.Y., had beaten some of the children. The incident had prompted most of the children to leave the camp and head home, having to hike eight kilometres through the mountains at night. The applicant noted the story down and reported it to the newspaper's editors, stating that she had not spoken to the camp's manager or an eyewitness to the incident. Nevertheless, she was instructed to prepare an article on the basis of the story of the persons who had come to the newspaper's office.

The next day, 19 September 1994, Struma ran an article titled “Camp head counsellor mistreats twenty-seven children”. In that article the applicant relayed the story, explicitly mentioning that it was based the on information by the persons who had come to the newspaper's office. The article started off by stating that the children had escaped from the “paws and bludgeons” of Mr K.Y.1”. It continued with the information that “at about 10 p.m. on the day of the incident Mr K.Y. [had] rushed into the children's dormitory for no apparent reason and [had] assaulted the children verbally and physically with his hands and a stick. Before that Mr K.Y. and the children's coach had had an argument on account of the authoritative manner of Mr K.Y. and the boot-camp regimen imposed by him.

On 22 August 1994 Mr P.Y. complained against the applicant to the Razlog District Prosecutor's Office. The Office conducted a preliminary inquiry in the course of which the applicant was questioned on 12 September 1994.

On 14 September 1994 the Blagoevgrad District Prosecutor's Office opened an investigation against the applicant.

On 13 October 1994 the applicant was charged with having defamed Mr P.Y. through a newspaper publication, by divulging a vilifying fact about him and by imputing a crime to him, the said acts being related to Mr P.Y.'s official duties. As a measure to secure appearance the applicant was ordered to not leave the town without authorisation. She was questioned.

On 7 December 1994 the investigator took the statements of the alleged victim, Mr P.Y., and of six witnesses.

On 9 December 1994 the investigator questioned the applicant for a second time and allowed her to acquaint herself with the case-file.

On 5 January 1995 the investigator questioned another witness.

On 6 January 1995 the investigator concluded his work on the case and sent the file to the prosecutor, recommending the applicant's committal for trial.

On 16 January 1995 the Blagoevgrad District Prosecutor's Office remitted the case to the investigator with instructions to append a document establishing Mr P.Y.'s status as an official and a certified list of the schoolchildren who had been at the camp at the time of the incident.

The prosecutor's instructions were complied with and on 9 February 1995 the applicant was again allowed to consult the case-file. The case-file was then forwarded to the prosecution.

On 6 March 1995 the Blagoevgrad District Prosecutor's Office indicted the applicant.

The Blagoevgrad District Court set the case down for hearing on 28 September 1995, calling seven witnesses. The panel of the court consisted of one judge and two lay judges.

The hearing listed for 28 September 1995 did not take place because four of the seven witnesses did not show up and the applicant asked the court for time to retain a lawyer. The court adjourned the case, fined the witnesses who had failed to appear and ordered that they be brought to the next hearing by force.

A hearing was held on 8 November 1995. All witnesses but one were present. Mr P.Y. intervened as a civil claimant and a private prosecuting party. He asked leave to call one witness to establish the damages he had suffered. The court acceded to his request. The applicant and all witnesses present, including the one newly requested by Mr P.Y., were questioned. Finding that one witness was absent, the court adjourned the case, ordering that the witness be brought to the next hearing by force.

On 29 November 1995 counsel for the applicant requested that the next hearing, which had been listed for the next day, 30 November 1995, be adjourned, as he would be busy defending a client at the Blagoevgrad Regional Investigation Service.

The following day, 30 November 1995, the Blagoevgrad District Court decided to adjourn the hearing, because counsel for the applicant and the unquestioned witness were absent.

A hearing listed for 9 February 1996 failed to take place because the applicant was ill and could not attend and because the remaining witness was absent as well. On the motion of the prosecution the court decided to change the measure to secure the applicant's appearance from an undertaking to not leave town to bail. The applicant appealed against this order and on 22 February 1996 the Blagoevgrad Regional Court overturned it.

A hearing listed for 29 March 1996 could not take place because the applicant was in hospital and did not show up and because the remaining witness was absent as well. The prosecution again requested the court to change the measure imposed on the applicant, but its motion was rejected.

A hearing was held on 17 May 1996. The remaining witness showed up and was questioned. The court heard the parties' oral argument.

By a judgment of the same date the Blagoevgrad District Court found the applicant guilty of having defamed Mr P.Y. and sentenced her to five months' imprisonment, suspended for three years, and to a public reprimand. She was ordered to pay Mr P.Y. 45,000 old Bulgarian levs (BGL) as compensation for non-pecuniary damage.

On 31 May 1996 the applicant appealed to the Blagoevgrad Regional Court.

A hearing was held on 3 December 1996. No new evidence was adduced by the parties. The court heard their oral argument.

By a judgment of 24 June 1997 the Blagoevgrad Regional Court upheld the conviction, but reduced the applicant's sentence to a BGL 5,000 fine.

On 14 August 1997 the applicant lodged a petition for review with the Supreme Court of Cassation.

The court held a hearing on 26 January 1998.

By a judgment of 2 February 1998 the Supreme Court of Cassation quashed the lower courts' judgments and remitted the case. It found that the minutes of all the hearings held by the Blagoevgrad District Court but the last one contained the name of one lay judge, whereas the minutes of the last hearing and its judgment contained a different name. It was thus highly probable that the panel of the court which had decided the case was different from the panel which had examined all the evidence during the trial. This had been a material breach of Article 257 § 1 of the Code of Criminal Procedure (“the CCP”), which required that the composition of the court remain the same throughout the trial. It necessitated the quashing of the Blagoevgrad District Court's judgment, as well as of the judgment of the Blagoevgrad Regional Court which had failed to spot this shortcoming, and the remitting of the case for a fresh examination by the first-instance court.

On remittal the Blagoevgrad District Court set the case down for hearing on 23 June 1998. The applicant was not duly summoned and did not show up. The prosecution requested that the proceedings be transferred to a different venue, the Razlog District Court, because most of the witnesses lived in Razlog. The court agreed and, in accordance with the relevant procedural rules, sent the case to the Supreme Court of Cassation for its forwarding to the Razlog District Court.

By an order of 2 October 1998 the Supreme Court of Cassation rejected the Blagoevgrad District Court's request and returned the case to it for continuation of the proceedings. It held that since the Blagoevgrad District Court had already started examining the case, procedural economy did not require a change of venue.

After the returning of the case the Blagoevgrad District Court held a hearing on 24 March 1999. The prosecution requested to be allowed to “particularise” the charges. The applicant's defence objected, stating that the rules of criminal procedure did not provide for a “particularisation” of the charges; the pretended “particularisation” was in fact an amendment of the charges. In its view, such an amendment during the trial would infringe the applicant's defence rights. The Blagoevgrad District Court held that the charges had in fact been amended, which infringed the applicant's defence rights. Accordingly, the court remitted the case to the prosecution authorities with instructions to formally present the applicant with the amended charges and thereafter to resubmit the indictment against her.

On 10 May 1999 the Blagoevgrad District Prosecutor's Office sent the case to the Blagoevgrad Regional Investigation Service with a view to securing compliance with the court's instructions.

Apparently no procedural activity took place after that.

In March 2000 the Criminal Code (“the CC”) was amended, installing more lenient penalties for defamation (see below, Relevant domestic law). Accordingly, the limitation period for the offence allegedly committed by the applicant became shorter (from seven and a half years to three years), expiring in 1997. In view of this, on 12 April 2000 the applicant requested the prosecution authorities to discontinue the proceedings.

By a decision of 21 June 2000 the Blagoevgrad District Prosecutor's Office decided to discontinue the proceedings. It found that following the amendments of the CC of March 2000 the offence with which the applicant had been charged had become privately prosecutable. It also found that the alleged victim, Mr P.Y., had not expressed the wish that the proceedings continue within three months after the entry of the amendments into force.

The decision was sent ex officio to the Blagoevgrad District Court, which confirmed it with an identical reasoning on 29 June 2000, without holding a hearing. The decision was apparently not notified to the applicant. According to the applicant, she was not informed about the discontinuation despite her numerous inquiries at the Blagoevgrad District Prosecutor's Office and the Blagoevgrad District Court and learned about it only in April 2004, when she received the Government's observations on the admissibility and merits of the case.

2.  The 1995-2000 criminal proceedings against the applicant

In the autumn of 1994 the offices of Struma received an anonymous letter describing abuses in the municipally-owned company “Sanel”: sales of non-ferrous metals and steel at prices lower than those of scrap metals. Enclosed were documents supporting part of the facts described in the letter. Struma's editor-in-chief instructed the applicant to conduct an inquiry into the matter. The applicant spoke to representatives of the trade unions in “Sanel” and gathered additional documents. She also met with a police inspector who was allegedly investigating the abuses in “Sanel”. On the basis of her research the applicant wrote an article.

On 2 November 1994 Struma published the article, which read:

“The Municipal company “Sanel” led towards bankruptcy by its managers

Head of customs office charged for $60,000

[I.S.] and his deputy [R.T.] involved in non-ferrous metals and steel affair

Struma was informed that 40 tons of aluminium sheets and 7 tons of first-quality steel have been taken out illegally from the warehouses of the municipal company “Sanel” in the town of Sandanski. The current manager of the company, [I.S.], and his deputy, [R.T.], were directly involved in the affair of the disappearance of the metal. The forty tons of aluminium were bought by the former boss of “Sanel”, [D.A.], owner of the single-member company “Tamara”, and by the president of the Plovdiv-based firm “Voximex”, [Ch.D.], at 30 levs per kilogram. Despite the ministerial prohibition on exporting the valuable material, the metal sheets, the sale of which was recorded with forged documents, went to Macedonia with the approval of the manager [I.S.], as indicated by a journalistic inquiry in the Sandanski customs house.

On top of this the cronies of [I.S.] and his deputy [R.T.] – the presidents of “Tamara and “Voximex” – dumped in Macedonia 77 tons of steel, which they had bought at the ridiculous price of 7 levs per kilogram. According to the customs' declarations the merchandise was sold for more than $60,000, or 4 million levs. According to informed sources, the head of the customs office in Sandanski, [A.], the nephew of the notorious businessman [D.A.] was personally involved in the affair.

The competent authorities are yet to begin unravelling the affair of the export of the non-ferrous metals, which allowed the bosses of “Sanel” and the customs' boss [A.] to grease their palms with fat commission fees. The Prosecutor's Office in Sandanski has opened a preliminary investigation into the matter.”

The applicant submits that the title and the subtitles were not written by her but by the editor-in-chief and that the final text of the article contained a number of changes about which she had not been consulted.

On 10 November 1994 the deputy-manager of “Sanel”, Mr R.T., complained to the Blagoevgrad District Prosecutor's Office, alleging that the article had defamed him. On 17 November 1994 the manager of the company, Mr I.S., also lodged a complaint, requesting the applicant to be charged.

On 3 May 1995 the Blagoevgrad District Prosecutor's Office opened an investigation against the applicant.

On 31 May 1995 the applicant was charged with having defamed Mr I.S. and Mr R.T. through a newspaper publication, by divulging vilifying facts about them, the said acts being related to their official duties. She was ordered to not leave town without authorisation and was questioned.

On 31 May and 1 June 1995 the investigation authorities questioned the alleged victims, Mr I.S. and Mr R.T., and two other witnesses. They also gathered a number of pieces of written evidence.

On 21 June 1995 the applicant was allowed to consult the case-file.

On 11 July 1995 the investigator concluded his work on the case and sent the file to the prosecution with the recommendation that the applicant be committed for trial.

On 15 November 1995 the Blagoevgrad District Prosecutor's Office indicted the applicant.

The first hearing before the Blagoevgrad District Court, listed for 13 November 1996, failed to take place because the applicant did not appear. A witness was absent as well. The court changed the measure to secure the applicant's appearance to bail. On 26 November 1996 the applicant appealed against this order and on 22 February 1996 the Blagoevgrad Regional Court overturned it, holding that the applicant had not been summoned in a timely manner and had thus been justified in not showing up for the hearing.

Two hearings, fixed for 14 April and 4 June 1997, were adjourned because the applicant had not been duly summoned and did not show up. The court sent a letter to the regional police department with a request to indicate the exact address of the applicant.

A hearing took place on 20 October 1997. The court heard the applicant and questioned two prosecution witnesses and one defence witness. Two other prosecution witnesses, who had been duly summoned, did not show up. The prosecutor stated that he insisted on the questioning of the missing witnesses and also asked the court to admit in evidence the original of the article written by the applicant and the employment contacts of Mr I.S. and Mr R.T. Counsel for the applicant submitted as evidence copies of the documents on the basis of which the applicant had written the impugned article and some other pieces of written evidence. He also requested leave to call several witnesses. The court admitted in evidence the documents presented by the defence, acceded to the prosecution's and the defence's requests for the calling of witnesses, and adjourned the case.

The next hearing was held on 20 January 1998. The court questioned five witnesses. The prosecution requested the calling of a further witness. Counsel for the applicant adhered to this request and also asked the court to admit in evidence certain documents. The court agreed and adjourned the case.

The next hearing took place on 2 April 1998. The court admitted in evidence certain documents requested at the previous hearing. It adjourned the case, as the witness requested by the prosecution at the previous hearing had not been duly summoned and did not show up and the remainder of the documents requested by the defence at the previous hearing had not been produced by the persons which were in possession of them.

The next hearing was held on 2 June 1998. The court re-questioned one of the witnesses. The witness requested by the prosecution on 20 January 1998 was not duly summoned and did not show up. The prosecutor stated that he insisted on the witness's questioning and requested leave to call another witness. The court gave leave over the objection of the applicant and adjourned the case.

The next hearing took place on 15 September 1998. The court questioned a witness for the prosecution. The prosecution requested the court to discontinue the trial and remit the case to the phase of the preliminary investigation, arguing that the charges against the applicant had not been formulated with sufficient precision and that her defence rights had thus been infringed. The court agreed and remitted the case.

Apparently no procedural activity took place after the remitting.

In March 2000 the CC was amended, installing more lenient penalties for defamation (see below, Relevant domestic law). Accordingly, the limitation period for the offence allegedly committed by the applicant became shorter (from seven and a half years to three years), expiring in 1997. In view of this, on 12 April 2000 the applicant requested the prosecution authorities to discontinue the proceedings.

By a decision of 21 June 2000 the Blagoevgrad District Prosecutor's Office decided to discontinue the proceedings. It found that following the amendments of the CC of March 2000 the offence with which the applicant had been charged had become privately prosecutable. It also found that the alleged victims, Mr R.T. and Mr I.S., had not expressed the wish that the proceedings continue within three months after the entry of the amendments into force.

The decision was sent ex officio to the Blagoevgrad District Court, which confirmed it with an identical reasoning on 29 June 2000, without holding a hearing. The decision was apparently not notified to the applicant. According to the applicant, she was not informed about the discontinuation despite her numerous inquiries at the Blagoevgrad District Prosecutor's Office and the Blagoevgrad District Court and learned about it only in April 2004, when she received the Government's observations on the admissibility and merits of the case.

B.  Relevant domestic law

1.  Defamation

Article 147 of the CC, as in force at the relevant time, provided:

“1.  Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by up to one year imprisonment or a fine of up to five levs, as well as by public reprimand.

2.  The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes.”

Article 148 § 2 of the CC, read in conjunction with Article 148 § 1 (2) and (3) thereof, provided that if the defamation was by way of press or if the person defamed was an official2 and the defamation was committed against him in the course of or in connection with the performance of his or her duties, the punishment was up to three years' imprisonment and a public reprimand.

In March 2000 the CC was amended and at present provides that defamation is punishable with a fine ranging from 3,000 to 7,000 new Bulgarian levs (BGN) and by a public reprimand (Article 147 § 1). Defamation by way of press or of an official is punishable by a fine ranging from BGN 3,000 to 10,000 and a public reprimand (Article 148 §§ 1 and 2).

Defamation is a privately prosecutable offence (Article 161 of the CC). At the relevant time and until March 2000 defamation of an official was publicly prosecutable (ibid.). After the March 2000 amendments all cases of defamation became privately prosecutable (ibid.). Pending public proceedings for the defamation of an official were to be continued if the victim had requested this within three months after the entry into force of the March 2000 amendments (paragraph 26 of the Transitional Provisions of the Act for the Amendment of the CC of March 2000).

2.  Undertaking not to leave town without authorisation

Article 146 of the CCP provides that a measure to secure appearance before the competent authority must be imposed in respect of every person accused of having committed a publicly prosecutable offence.

By Article 149 of the CCP, the most lenient such measure is a written undertaking by the accused that he or she will not leave his or her place of residence without authorisation by the respective authority – the prosecutor or the court, depending on the stage of the proceedings.

3.  The State Responsibility for Damage Act

Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

...

2.  accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because the crime was not committed by the accused, because the act committed by the accused does not constitute a crime, or because the criminal proceedings were instituted after the expiry of the limitation period or despite an amnesty;

3.  conviction of a crime ... if the convicted is [subsequently] acquitted ...”

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances 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.).

COMPLAINTS

1.  The applicant complained under Article 10 of the Convention that she had been criminally prosecuted for having written the two articles. She submitted that the two sets of criminal proceedings against her had constituted unjustified interferences with her freedom of expression.

2.  The applicant complained under Article 6 § 1 of the Convention about the length of the two sets of criminal proceedings against her.

3.  The applicant complained under Article 6 § 3 (a) of the Convention that in both sets of criminal proceedings the charges against her had not been formulated with sufficient precision.

THE LAW

1.  In respect of her complaint that she was criminally prosecuted for having written the two articles the applicant relied on Article 10 of the Convention, which provides, as relevant:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Court must firstly examine whether following the discontinuation of the criminal proceedings against her the applicant may still claim to be a victim within the meaning of Article 34 of the Convention (see Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005).

It may not be excluded that in certain circumstances the mere opening of criminal proceedings against an individual may constitute an interference with his or her freedom of expression and render him or her a victim of an alleged violation, especially in cases where it appears that the proceedings were intended as a means to intimidate the person concerned and to exert improper pressure on him or her. However, absent such indications, the mere “institution of criminal proceedings as a result of complaints by individuals cannot, as such, constitute an interference with a person's exercise of his right to freedom of expression” (see Ziegler v. Switzerland, no. 19890/92, Commission decision of 3 May 1993, Decisions and Reports (DR) 74, p. 234, at p. 240). It will be only if these proceedings result in tangible negative consequences for the applicant, such as a conviction and punishment, that he or she may claim to be a victim of a violation within the meaning of Article 34. In this connection, the Court reiterates that it is primarily a supervisory body and subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies and the requirement under Article 13 of the Convention that States provide effective remedies for arguable breaches of guaranteed rights and freedoms reflect the principle that it is first and foremost the role of the Contracting States to give redress for interferences with the rights protected under the Convention (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 65, ECHR 2000-X). The Court may have cognizance of a complaint only if this domestic mechanism has been unable to provide adequate redress.

In the present case, both sets of criminal proceedings against the applicant did not result in final convictions, because they were eventually discontinued. The reason for the discontinuations was that, following the amendments of the CC of March 2000, the offence of defamation, with which the applicant had been charged, became privately prosecutable in all cases, and the alleged victims did not express the wish for the proceedings to continue within three months after the entry of the amendments into force.

In the particular circumstances of the case the Court is inclined to think that the discontinuation of the proceedings because of the said amendments of the CC related, at least in substance, to the complaint raised by the applicant under the Convention and constituted sufficient redress for her grievance (see, mutatis mutandis, Pitarque v. Spain, no. 13420/87, Commission decision of 7 September 1989, DR 62, p. 258). While it seems that the applicant could not be awarded compensation for the proceedings under the State Responsibility for Damage Act or any other provision of domestic law (see above, Relevant domestic law and practice), she has not specified to the Court that she suffered any concrete loss as a result of them (see Akkoç, cited above, § 67). In particular, there is nothing in the case-file to indicate that she lost her employment on account of the proceedings or that her health problems were a result thereof.

The Court concludes that the applicant may in these circumstances no longer claim to be a victim of an interference with her right of freedom of expression. Insofar as the applicant complained that the charges against her had not been determined within a reasonable time, that issue falls to be examined under Article 6 § 1.

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

2.  In respect of her complaint about the length of the first set of proceedings against her 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 period to be taken into consideration began on 14 September 1994, when the proceedings had been instituted, and ended on 29 June 2000, when the Blagoevgrad District Court had confirmed the prosecution's decision to discontinue the proceedings.

In their view, the length of the proceedings had not been unreasonable. They conceded that the case had not been factually or legally complex. However, they submitted that no unjustified delays had taken place. The preliminary investigation had been very quick. Likewise, the proceedings before the first-instance court had lasted only eight months. Three of the six hearings held by that court had been adjourned because of the applicant. The non-appearance of witnesses had further delayed the proceedings. However, the court had reacted to that and had ordered that the witnesses be brought by force, and had listed the hearings at short intervals. No unjustified delays had taken place during the ensuing phases of the proceedings. In particular, the remitting to the phase of the preliminary investigation had been necessary with a view to respecting the applicant's defence rights.

The applicant firstly submitted that she had not been notified of the discontinuation of the proceedings in June 2000 despite her numerous inquiries at the Blagoevgrad District Prosecutor's Office and the Blagoevgrad District Court. She had thus learned about the discontinuation only in April 2004, when receiving the Government's observations. In her view, the end of the period to be taken into consideration was thus April 2004.

The applicant further submitted that the proceedings had lasted unreasonably long. In particular, no activity had taken place after the remitting of the case to the preliminary investigation phase.

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.

3.  In respect of her complaint about the length of the second set of proceedings against her the applicant also relied on Article 6 § 1 of the Convention.

The Government submitted that the period to be taken into consideration began on 3 May 1995, when the proceedings had been instituted, and ended on 29 June 2000, when the Blagoevgrad District Court had confirmed the prosecution's decision to discontinue the proceedings.

In their view, the length of the proceedings had not been unreasonable. They conceded that the case, like the first one, had not been legally complex. However, they submitted that no unjustified delays had taken place. The preliminary investigation had been very quick. Several hearings listed by the first-instance court had been adjourned for various reasons, such as the fact that the applicant had not been summoned in due time for one of them and the fact that she had changed her address, but had been summoned at the old one. However, the court had scheduled the hearings at short intervals, thus avoiding undue delay.

The applicant firstly submitted that she had not been notified of the discontinuation of the proceedings in June 2000 despite her numerous inquiries at the Blagoevgrad District Prosecutor's Office and the Blagoevgrad District Court. She had thus learned about the discontinuation only in April 2004, when receiving the Government's observations. In her view, the end of the period to be taken into consideration was thus April 2004.

The applicant further submitted that the proceedings had lasted unreasonably long. In particular, no activity had taken place after the remitting of the case to the preliminary investigation phase.

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.

4.  In respect of her complaint that the charges against her were not formulated with sufficient precision the applicant relied on Article 6 § 3 (a) of the Convention, which provides:

“Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...”

As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, as a recent authority, Hulki Güneş v. Turkey, no. 28490/95, § 87, ECHR 2003-VII (extracts)).

The Court reiterates that a person may not claim to be a victim of a violation of his or her right to a fair trial under Article 6 which allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued (see X v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223, Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported, and Osmanov and Yuseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003). The Court notes that both sets of proceedings against the applicant were discontinued by the prosecution authorities because after the amendments of the CC of March 2000 the offences with which she had been charged became privately prosecutable and the alleged victims did not express the wish for the proceedings to continue within three months after the entry of the amendments into force. The Court considers that in these circumstances the applicant can no longer claim to be a victim of a violation of her right to a fair trial.

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 unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning the length of the two sets of criminal proceedings against her;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

1.  Apparently by mistake Mr P.Y. featured in the article as Mr K.Y.


2.  “Official” is defined by Article 93 § 1 of the CC as “a person who works ... in a state agency ... or who has managerial or money-keeping duties in a state enterprise or ... another company”.


KALPACHKA v. BULGARIA DECISION


KALPACHKA v. BULGARIA DECISION